Marriage of Prout

Filed 4/20/06 Marriage of Prout CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, Alan B. Clements, Commissioner. Reversed.

In this family law case, Margie R. Prout appeals the trial court's denial of her motion to vacate the judgment of marital dissolution, except as to marital status, entered on the marital settlement agreement (MSA) reached with her husband, Stuart E. Prout. Margie contends that the judgment and the MSA should be vacated based on the ground of mistake because she did not know the value of Stuart's retirement benefits at the time she entered into the MSA.

As we will explain, because Stuart did not fully comply with his disclosure requirements under the Family Code, and Margie thus entered into the MSA without full knowledge of the relevant facts, we conclude that the trial court abused its discretion in denying the motion to vacate. Accordingly, we reverse.^[1]

I

FACTUAL AND PROCEDURAL BACKGROUND

Stuart and Margie were married in 1972 and separated in November 1993.^[2] Margie commenced marital dissolution proceedings in May 1999. Stuart was employed by San Diego Gas and Electric (SDG&E) from January 1973 through September 2004, when he retired.^[3]

On the day set for trial, March 24, 2003, the parties entered the MSA on the record before the trial court. The MSA, which was subsequently reduced to writing and attached to the stipulated judgment, provided for (1) a monthly spousal support payment to Margie of $1,600, (2) the equal division of certain life insurance and stock holdings, (3) a reimbursement to Margie of funds spent on a son's juvenile court expenses, (4) a payment of $4,000 toward Margie's attorney fees, (5) the disposition of real and personal property in each of the parties' current possession as their sole and separate property, and (6) an equalization payment of $65,000 to Margie "to buy out [Margie's] interest in [Stuart's] SDG&E retirement, pension, profit sharing interest, accumulated through his employment with SDG&E."

While putting the MSA on the record, Margie stated that she was entering into that portion of the MSA "concerning the division of pension benefits" against the advice of her attorney. Upon questioning by the trial court, Margie confirmed that the terms and conditions of the settlement were acceptable to her. A stipulated judgment of dissolution was entered June 20, 2003, incorporating the terms of the MSA.

On March 10, 2004, Margie filed a motion to vacate the judgment of dissolution, except as to marital status, and to vacate the MSA on the basis that Stuart had not disclosed the value of his retirement benefits to her prior to her execution of the MSA. The motion argued that because Stuart "failed to make full, accurate, and complete disclosure of his retirement and pension benefits . . . in violation of his fiduciary duty towards [Margie]," the judgment and the MSA should be set aside on the ground of mistake.^[4]

Attached to the motion was Stuart's preliminary schedule of assets and debts dated August 1999, which stated "UNK" (i.e., unknown) for the value of his retirement and pension, and an undated and unsigned schedule of assets and debt, which Margie states was Stuart's final schedule of assets and debt. This purported final schedule does not disclose a value for retirement and pension, but states, "on file with Mr. Barden" [Stuart's attorney].^[5] (Capitalization omitted.) Also attached to Margie's motion was a 2001 letter from Stuart's attorney to Margie's attorney explaining that SDG&E "will not produce the information voluntarily to [Stuart]" to enable the parties to calculate the community property interest in Stuart's retirement benefits. Stuart's attorney suggested that Margie subpoena the information from SDG&E. The letter stated, "[I]t will then be necessary for us to prepare the proper [qualified domestic relations orders (QDRO)] to send to SDG&E so that they may compute [Margie's] interest."

Margie explained in a declaration filed in support of her motion that she agreed to the $65,000 equalization payment in the MSA rather than waiting to receive a portion of Stuart's retirement benefits through a QDRO, because she was being medically treated for polysystic kidney disease, which is a progressive disease eventually requiring a kidney transplant or dialysis, that she would soon be on the transplant list, and that without a transplant (and the funds to pay for it) her life expectancy was short. Margie's declaration stated, "I saw this proposed settlement agreement as a means to pay for the transplant and prolong my life. The idea of agreeing to something unknown, the value of [Stuart's] pension benefits, versus enough money now to prolong my life was all I considered." She stated, "Had I known the value of [Stuart's] retirement benefits and that I could cash a portion of it in to pay for the transplant I would not have agreed to the [MSA]."

For reasons not clear from the record, the subsequent briefing of the motion was delayed. Stuart filed an opposition to the motion in October 2004. Stuart's declaration stated, "My attorney and I provided all information necessary for [Margie and her attorney] to compute and determine the value of all of my pension, retirement, profit sharing, 401K plans, etc., through [SDG&E]." At the hearing, Stuart's attorney argued that Margie "elected voluntarily not to subpoena anything from [SDG&E], which she could have done, despite the fact that we urged them to do that so we could get the information also." He also argued, "[W]e were not in any superior position to know the value of the pension. That was the reason I wrote [Margie's attorney] a letter . . . with a follow[‑]up letter. I urged them to subpoena so they would know, and she chose not to."

Margie filed a supplemental declaration in November 2004, which attached information she had recently received from Sempra in response to a subpoena. Specifically, attached to the supplemental declaration was a letter from Sempra dated October 15, 2004, and account statements for Stuart's retirement plans. The letter from Sempra explained that Stuart had participated in two retirement plans.

The first retirement plan was a defined benefit plan, named the "Cash Balance Plan." Under that plan, assuming Stuart's employment ended on September 30, 2004, the monthly benefit payable for Stuart's remaining lifetime would be approximately $1,462.86, or a lump-sum payment of approximately $341,006.78. Margie calculated that based on a separation date in November 1993, the community property interest in the lump-sum payment would be 65.67 percent, or $223,939.15, of which her half would be $111,969.57.

The second retirement plan was a defined contribution plan, which included matching employer contributions and company stock. This plan was named the "Savings Plan." Sempra informed Margie that the Savings Plan had a current value of $89,117.61.^[6] Margie calculated that the community property interest in the Savings Plan would be 9.48 percent, or $8,448, of which her half would be $4,224.

Margie's supplemental declaration asserted that Stuart was "clearly aware of his pension benefits since he received annual statements from SDG&E," referring to the statements that had been produced to her by Sempra in response to the subpoena.^[7]

After hearing argument and taking the matter under submission, the trial court orally delivered its ruling at a second hearing, denying the motion. Explaining its rejection of Margie's contention that the judgment should be set aside on the basis of mistake, the trial court stated, "I am persuaded that [Margie] fully understood that the value of the pension had not been determined. Specifically her counsel advised her against the stipulation. She entered that stipulation anyway. And in the court's opinion, now suffers from a case of buyer's remorse."

Margie appeals, requesting that we reverse the trial court's ruling denying the motion to vacate the judgment (except as to marital status) and the MSA.

II

DISCUSSION

A

Standard of Review

"We review the trial court's decision in ruling on the motion to set aside the judgment and the motion to set aside the martial settlement agreement to determine if the trial court abused its discretion." (In re Marriage of Brewer & Federici (2001) 93 Cal.App.4th 1334, 1346 (Brewer).) Although we may not substitute our judgment for that of the trial court, "[t]he trial court's exercise of discretion must be guided . . . by fixed legal principles, and must 'be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.' " (In re Marriage of Varner (1997) 55 Cal.App.4th 128, 138 (Varner).)

B

The Legal Basis for the Motion to Vacate

We begin with a review of the Family Code provisions on which Margie's motion was based.^[8]

Margie's motion to vacate the judgment was based on section 2121, subdivision (a), which provides that in a dissolution proceeding, "the court may, on any terms that may be just, relieve a spouse from a judgment, or any part or parts thereof, adjudicating support or division of property, after the six-month time limit of Section 473 of the Code of Civil Procedure has run, based on the grounds, and within the time limits, provided in this chapter."^[9] Section 2122, which sets forth the grounds on which such a motion may be brought, specifies actual fraud, perjury, duress, mental incapacity, mistake, and failure to comply with the disclosure requirements set forth in sections 2100 through 2113.

Here, Margie based her motion on the ground of mistake.^[10] Specifically, as to the ground of mistake, section 2122, subdivision (e) states: "As to stipulated or uncontested judgments or that part of a judgment stipulated to by the parties," a motion to vacate may be based on "mistake, either mutual or unilateral, whether mistake of law or mistake of fact."

In addition, "the party seeking to set aside a dissolution judgment must also establish that the presence of at least one of these . . . grounds for relief 'materially affected the original outcome' and that he or she 'would materially benefit from the granting of the relief.' " (In re Marriage of Rosevear (1998) 65 Cal.App.4th 673, 684 (Rosevear), citing § 2121, subd. (b).) "Thus, in order to set aside the stipulated judgment in this case, [Margie] was required to establish . . . that she would materially benefit from the granting of relief." (Rosevear, at pp. 684-685.)

C

The Spousal Fiduciary Duty of Disclosure During Dissolution Proceedings

Margie argues that her mistake was caused by Stuart's alleged breach of his fiduciary obligations to disclose the value of his retirement benefits. We thus next examine the fiduciary obligations that govern the relationship between spouses involved in a dissolution proceeding.

The fiduciary obligations of spouses to each other, which are set forth in section 721, are made specifically applicable during dissolution proceedings by section 1100, subdivision (e).^[11]

"Each spouse shall act with respect to the other spouse in the management and control of the community assets and liabilities in accordance with the general rules governing fiduciary relationships which control the actions of persons having relationships of personal confidence as specified in Section 721, until such time as the assets and liabilities have been divided by the parties or by a court. This duty includes the obligation to make full disclosure to the other spouse of all material facts and information regarding the existence, characterization, and valuation of all assets in which the community has or may have an interest and debts for which the community is or may be liable, and to provide equal access to all information, records, and books that pertain to the value and character of those assets and debts, upon request." (§ 1100, subd. (e).)

Consistent with these fiduciary obligations of disclosure, section 2100, subdivision (c) provides that "a full and accurate disclosure of all assets and liabilities in which one or both parties have or may have an interest must be made in the early stages of a proceeding for dissolution of marriage or legal separation of the parties, regardless of the characterization as community or separate, together with a disclosure of all income and expenses of the parties." This disclosure duty is ongoing, as section 2100 provides that "each party has a continuing duty to immediately, fully, and accurately update and augment that disclosure to the extent there have been any material changes so that at the time the parties enter into an agreement for the resolution of any of these issues, or at the time of trial on these issues, each party will have a full and complete knowledge of the relevant underlying facts."^[12] (§ 2100, subd. (c), italics added.)

To implement this obligation, the Family Code requires the service of a preliminary and final declaration of disclosure "[i]n order to provide full and accurate disclosure of all assets and liabilities in which one or both parties may have an interest . . . ." (§ 2103.) Specifically, "the preliminary declaration of disclosure shall set forth with sufficient particularity," to the extent that "a person of reasonable and ordinary intelligence can ascertain [them]," "[t]he identity of all assets in which the declarant has or may have an interest and all liabilities for which the declarant is or may be liable, regardless of the characterization of the asset or liability as community, quasi-community, or separate," among other things. (§ 2104, subd. (c).)

The final declaration of disclosure must be served "before or at the time the parties enter into an agreement for the resolution of property or support issues other than pendente lite support, or, if the case goes to trial, no later than 45 days before the first assigned trial date." (§ 2105, subd. (a).) It must include, among other things, "[a]ll material facts and information regarding the valuation of all assets that are contended to be community property or in which it is contended the community has an interest." (§ 2105, subd. (b)(2).)

The Family Code makes clear that the parties may not voluntarily waive their disclosure obligations. Although the Family Code provides that "[t]he parties may stipulate to a mutual waiver" of the final declaration, such a waiver must include a statement, under penalty of perjury, certifying that, among other things, "[b]oth parties have fully complied with Section 2102 and have fully augmented the preliminary declarations of disclosure, including disclosure of all material facts and information regarding the characterization of all assets and liabilities, [and] the valuation of all assets that are contended to be community property or in which it is contended the community has an interest . . . ." (§ 2105, subd. (d)(3).) Further, the waiver must provide that the parties understand "that this waiver does not limit the legal disclosure obligations of the parties, but rather is a statement under penalty of perjury that those obligations have been fulfilled." (§ 2105, subd. (d)(5), italics added.) Consistent with the strong policy requiring full disclosure, section 2107, subdivision (d) states: "If a court enters a judgment when the parties have failed to comply with all disclosure requirements of this chapter, the court shall set aside the judgment. . . ."

D

The Trial Court Abused Its Discretion by Denying Margie's Motion to Vacate

Margie's motion is based on case law that applies spouses' nonwaivable statutory disclosure obligations to hold that "spouses may be relieved of a stipulated judgment based upon incomplete or inaccurate information" (Brewer, supra, 93 Cal.App.4th at p. 1345), and that "the failure of a spouse to disclose the existence or the value of a community asset . . . constitutes a basis for setting aside a judgment on the grounds of mistake under section 2122." (Varner, supra, 55 Cal.App.4th at p. 144.)

As we will explain, based on these authorities, and most specifically on Brewer, we determine that Margie should be relieved of the stipulated judgment and the MSA, because Stuart did not provide complete information about his retirement benefits.

The facts in Brewer are analogous in several respects, and we find Brewer's analysis to be dispositive here. In Brewer, the wife, who had well-paying corporate employment, entered into an MSA with the husband, who was an unemployed artist. (Brewer, supra, 93 Cal.App.4th at pp. 1337-1338.) In the final declaration of disclosure served by the wife, she did not provide enough information about her retirement benefits for the husband to understand their value, in part because, as she later explained, she did not fully understand the benefits herself and did not try to ascertain their value. (Id. at p. 1340.) The wife had two retirement plans, and the declaration of disclosure provided a specific value of $168,561 for one of the plans, which was later shown to be too low, and the disclosure stated "unknown" for the value of the other plan. (Id. at pp. 1338-1340.) The husband later explained that based on this information, he had believed there was only one retirement plan and that the total value of the wife's retirement benefits was $168,561. (Id. at p. 1339.) Accordingly, he had agreed to an equalization payment based on that understanding. (Id. at p. 1340.) In fact, the value of the wife's retirement benefits was more than $500,000. (Ibid.) Brewer concluded that the judgment and the MSA in that case should be vacated on the ground of unilateral mistake because "[husband] did not have accurate and complete valuations of [wife's] pension plans. Such information was essential to his agreement to resolve all financial issues . . . ." (Id. at p. 1346.)

Similar to Stuart's position here, the wife in Brewer argued that "she met her disclosure obligations when she valued [one of the plans] as 'unknown,' " and that "it is unreasonable to expect spouses to value all assets, as to do so requires them to expend considerable funds on experts." (Brewer, supra, 93 Cal.App.4th at p. 1347.) Rejecting that argument, Brewer held that because the pension "is one of the largest community assets" and "an asset which is financial in nature and whose monetary value is easily ascertainable," the wife "did not make sufficient disclosure" when she stated that its value was " 'unknown.' " (Ibid.) Brewer also rejected the wife's argument that "once she came forward with the information" that "one plan had an 'unknown' value," the husband "had an obligation to search for additional information" and "could have requested a declaration of disclosure with further particularity." (Id. at p. 1348.) Brewer explained that "a spouse who is in a superior position to obtain records or information from which an asset can be valued and can reasonably do so must acquire and disclose such information to the other spouse." (Ibid.) Thus even if the wife "did not intentionally mislead [the husband], she was in a superior position to gain access to the information from which valuations for these assets could be determined," and "[t]here was no evidence suggesting it would have been unreasonable for [the wife] to obtain current and accurate valuation information about the pension plans, both of which came from her employer." (Ibid.)

Brewer's analysis applies here. As in Brewer, Margie's motion is based on the fact that she did not have sufficient information about Stuart's retirement benefits to make an informed decision about the MSA. Although Stuart, like the wife in Brewer, contends that he too lacked information about his retirement benefits, and that Margie could just as well have subpoenaed the information from his employer and had a valuation performed, because Stuart's retirement benefits were at issue, he, like the wife in Brewer, had the fiduciary obligation to determine their value and to disclose that information.

Although we have seen no indication in the record that Stuart intentionally withheld information from Margie, a spouse's duty of disclosure during dissolution proceedings "arise without reference to any wrongdoing." (Brewer, supra, 93 Cal.App.4th at p. 1344.) As Brewer establishes, it was Stuart's duty to ascertain and disclose the information about his retirement benefits before entering into the MSA. Although Margie was well aware that the required disclosure had not been made and she willingly entered into the MSA with that knowledge, the Family Code does not allow one spouse to waive the other spouse's duty of disclosure. (§ 2105, subd. (d).) Because Stuart did not disclose the value of his retirement benefits, Margie, like the husband in Brewer, entered into the MSA based on mistake, and that mistake provides a basis to vacate the judgment.

According to our review of the record, it appears that the trial court did not follow Brewer, which was cited by Margie, because it lost sight of the fiduciary duties of disclosure that apply in a martial dissolution context. The trial court viewed Margie's motion as evidencing "buyer's remorse," in which Margie knew that she was entering into a settlement agreement without full information and later regretted her decision. While a characterization of such a circumstance as "buyer's remorse" may be applicable in a nonmarital context, the trial court's statement overlooks that "[t]he formulation of a marital settlement agreement is not an ordinary business transaction, resulting from an arm's-length negotiation between adversaries. Rather, it is the result of negotiations between fiduciaries required to openly share information." (Brewer, supra, 93 Cal.App.4th at p. 1344.) The parties to an MSA "are free to decide on an unequal distribution" only "[a]s long as such agreement is based upon a complete and accurate understanding of the existence and value of community and separate assets that are material to the agreement . . . ." (Id. at p. 1349, italics added.) Here, because Stuart did not fully comply with his disclosure obligations, Margie did not have a complete and accurate understanding.

Further, as required to prevail in a motion to vacate under section 2122, Margie has established that the mistake caused by Stuart's nondisclosure of the value of his retirement plans, " 'materially affected the original outcome' and that . . . she 'would materially benefit from the granting of the relief.' " (Rosevear, supra, 65 Cal.App.4th at p. 684.) Although "the failure on the part of two divorcing spouses to exchange final declarations of disclosure . . . does not constitute a 'get-a-new-trial-free' card, giving either one of them the automatic right to a new trial or reversal on appeal when there is no showing of a miscarriage of justice" (In re Marriage of Steiner & Hosseini (2004) 117 Cal.App.4th 519, 522, citations omitted, italics added), here the incomplete nature of Stuart's disclosure did create a miscarriage of justice and led Margie to enter into the MSA by mistake. As Margie established in her declaration, she would not have agreed to the $65,000 equalization payment if she had full information about the value of Stuart's retirement benefits. Moreover, the difference between Margie's share of the community interest portion of the retirement benefits and the $65,000 equalization payment is a potentially material amount, as Margie has asserted that her share of the retirements benefits, if paid in a lump sum, would be over $111,000.^[13]

Based on the above, we conclude that the trial court abused its discretion because it failed to focus on the fiduciary duties of disclosure that apply in a martial dissolution context and instead viewed the MSA as a standard arm's-length transaction. In so doing, the trial court did not exercise its discretion " 'in conformity with the spirit of the law' " (Varner, supra, 55 Cal.App.4th at p. 138), and thus erred in denying relief to Margie, who had established a miscarriage of justice and that she would materially benefit from the relief.

We thus reverse the trial court's order denying Margie's motion to vacate, and we hereby direct that the MSA and the stipulated judgment be vacated, except as to marital status. (See Brewer, supra, 93 Cal.App.4th at p. 1345 [affirming set aside of both judgment and MSA based on mistake]; In re Marriage of Fell (1997) 55 Cal.App.4th 1058, 1066 [setting aside both judgment and MSA].)

DISPOSITION

The order appealed from is reversed.

IRION, J.

WE CONCUR:

McINTYRE, Acting P. J.

AARON, J.

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^[1] We granted Margie's unopposed request to augment the record on November 1, 2005, and we approved the parties stipulation to augment the record on December 1, 2005.

^[2] For purposes of clarity, we refer to the parties by their first names and intend no disrespect.

^[3] SDG&E is currently owned by Sempra Energy (Sempra).

^[4] At the hearing on the motion, there was some suggestion that Margie was also basing the motion to vacate on the ground of duress. However, Margie's appellate briefing clarifies that "[i]n her motion to vacate the judgment, Margie never argued that she was placed under duress by Stuart, or sought to vacate the judgment under the duress provision of Family Code section 2122, subdivision (c)."

^[5] The purported final schedule of assets and debt prepared by Stuart is undated, and the only indication of a date is the fax transmission date on top, which is illegible on the copy in the record. According to Margie's appellate briefing, the schedule was provided to her attorney on March 17, 2003.

^[6] Margie characterizes the Savings Plan as a savings account, rather than a retirement plan. The record is clear, however, that the Savings Plan is a defined contribution retirement plan. (See In re Marriage of Bergman (1985) 168 Cal.App.3d 742, 748, fn. 4 ["As contrasted to a defined benefit plan, the other kind of retirement plan is a defined contribution plan"].) Thus it is arguably encompassed in the information about retirement benefits that Stuart's schedule of assets and debts stated was on file with his attorney. Further, Margie argues that she was unaware that Stuart had participated in the Savings Plan (as opposed to participating in a defined benefit pension plan). The record does not support this assertion. Margie's trial brief stated that during Stuart's employment with SDG&E, "he has acquired pension benefits, stock in SDG&E, deferred compensation plans and 401K benefits," and requested that the court order a QDRO relating to all of those retirement benefits.

^[7] Apart from Margie's assertion, however, the record does not contain evidence that Stuart ever received these retirement plan statements. We note also that the statements would not have enabled someone reviewing them to determine that a lump sum of $341,006.78 would be available to Stuart upon retirement in September 2004. The June 2003 statement indicates a "total ending account balance" of $238,662.64, and a monthly payment of $2,319.64, or $1,981.55 if Stuart retired at age 65, depending on whether interest was factored in.

^[8] Unless otherwise specified, all further statutory references are to the Family Code.

^[9] Because Margie's motion was filed more than six months after the judgment, Family Code section 2121 alone applies, not Code of Civil Procedure section 473.

^[10] Although she based her motion to vacate the judgment only on the ground of mistake, Margie claims in her appellate briefing that "[i]n her motion and in the argument of her counsel, Margie set forth a clear case for vacating the judgment under the criteria of fraud and perjury, in that Stuart had failed to make a full disclosure of community assets, and had signed court-mandated forms under penalty of perjury as part of his efforts to conceal those assets. Stuart's concealment of those assets resulted in a unilateral mistake on Margie's part in entering into the stipulated judgment." To the extent Margie is attempting to advance fraud and perjury as new and separate grounds to vacate the judgment, we will not consider them, as Margie may not raise new grounds for relief for the first time on appeal. (In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 117 [rejecting grounds advanced for the first time on appeal from a motion to vacate a judgment because "[i]t is well established that issues or theories not properly raised or presented in the trial court may not be asserted on appeal, and will not be considered by an appellate tribunal"].)

We note also that section 2122, subdivision (f) states that "failure to comply with the disclosure requirements" during dissolution proceedings provides a ground to vacate a judgment, and that a motion based on that ground "shall be brought within one year after the date on which the complaining party either discovered, or should have discovered, the failure to comply." Margie has not specifically asserted this provision as a basis for her motion.

^[11] Section 721, subdivision (b) provides that generally "in transactions between themselves, a husband and wife are subject to the general rules governing fiduciary relationships which control the actions of persons occupying confidential relations with each other. This confidential relationship imposes a duty of the highest good faith and fair dealing on each spouse, and neither shall take any unfair advantage of the other. This confidential relationship is a fiduciary relationship subject to the same rights and duties of nonmarital business partners . . . ."

^[12] Similarly, section 2102, subdivision (a) states:

"From the date of separation to the date of the distribution of the community or quasi-community asset or liability in question, each party is subject to the standards provided in Section 721, as to all activities that affect the assets and liabilities of the other party, including, but not limited to . . . . [¶] (1) The accurate and complete disclosure of all assets and liabilities in which the party has or may have an interest or obligation and all current earnings, accumulations, and expenses, including an immediate, full, and accurate update or augmentation to the extent there have been any material changes." (Italics added.)

^[13] Challenging Margie's showing that her mistake materially affected the initial outcome and that she would materially benefit from a set aside of the judgment, Stuart details the various methodologies for pension plan division, asserting "the only thing that is certain" is that Margie would never have received the full amount in excess of $111,000 that she calculates is her portion of the community property interest in Stuart's pension. Based on the record, we are satisfied that the amount at issue, although not conclusively determined at this point, is material. Given the applicable fiduciary standard, Margie's showing of materiality need not be overwhelming.