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LESA CHRISTENSON, CLS-F (SBN 120493)
JENNIFER B. ZACHARY, ESQ. (SBN 234404)
ASHWORTH, BLANCHETT, CHRISTENSON
& KALEMKIARIAN, LLP
2250 THIRD AVE.
SAN DIEGO, CA 92101
PHONE: 619.234.8585
FAX: 619.231.1118
ATTORNEYS FOR RESPONDENT
BARBARA K. XXXXXX
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES, SOUTHWEST DISTRICT
IN RE THE MARRIAGE OF:
GARY W. XXXXXX
PETITIONER,
AND
BARBARA K. XXXXXXX,
RESPONDENT
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Case No.: D233XXX
STIPULATION AND ORDER MODIFYING
FURTHER JUDGMENT ON RESERVED ISSUES
ENTERED 7/21/95, AND RELATED MATTERS
Petitioner Gary W. XXXXXX (hereinafter “Petitioner”), and
Respondent (hereinafter “Respondent”), hereby stipulate as follows:
1. MODIFICATION OF JUDGMENT: The Further Judgment on
Reserved Issues entered herein on July XX, 19XX (hereinafter “Judgment”) is
hereby modified as follows:
A. In complete settlement of all child and spousal
Claims between the parties incident to their divorce and related to the
cessation of their marriage, Respondent shall receive the following property
from the Petitioner
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(1) TRANSFER OF 401(K) FUNDS: The sum of $84,
659.00 shall be transferred from Petitioner’s Lee Hecht Harrison 401(K) Plan
directly into an IRA account held in Respondent’s name. Petitioner represents
that he has sufficient funds in his 401(K) account and the ability to
accomplish this transfer, which shall be done at the earliest possible date.
The amount shall be rolled over pursuant to a Qualified Domestic Relations
Order (“QDRO”) and adjusted for any accruals, gains or losses from the date
of September 1, 2013 to the date of rollover. The QDRO shall be prepared by
Anna Vasquez and its costs paid by the Petitioner.
(2) TRANSFER OF FLORIDA CONDO: The
condominium real property owned by the parties as tenants in common, commonly
known as XXXX E. Orange Ave., Altamonte Springs, Florida, is awarded to
Respondent as her sole and separate property, modifying Paragraph 18 of the
Judgment. Petitioner shall execute a deed conveying his ownership interest to
Respondent concurrently with the signing of this Stipulation.
(3) TRANSFER OF RENTAL BANK ACCOUNT: The
rental bank account at Bank of America, account #XXX4342, standing in the
name of both parties, is awarded to Respondent as her sole and separate
property, modifying paragraph 18 of the Judgment.
(4) LEVIED BANK OF AMERICA FUNDS: The funds
levied upon in Petitioner’s Bank of America account pursuant to Writ of
Execution in the amount of $86.00 shall be awarded to Respondent as her sole
and separate property.
(5) LEVIED NAVY FEDERAL CREDIT UNION FUNDS:
The funds levied upon Petitioner’s Navy Federal Credit Union account pursuant
to the Writ of Execution in the amount of $8, 223.46 received by Respondent
shall be awarded to her as her sole and separate property.
B. The parties acknowledge that these transfers are
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Not tax deductable by Petitioner and not includable as income to Respondent.
2. NON-TAXABLE 401 (K) TRANSFER UNDER IRC § 1041: The
parties acknowledge and intend that the transfer (roll over) of 401(k) funds
from Petitioner to Respondent under this Stipulation and Order is, and is
intended to be, a non-taxable transfer under Internal Revenue Code § 1041.
A. Internal Revenue Code § 1041 provides in pertinent
part:
(a)General Rule
No gain or loss shall be recognized on a transfer of
property from an individual to (or in trust for the benefit of) –
(1) a spouse, or
(2) a former spouse, but only of the transfer is
incident to the divorce.
(b). . .
(c) Incident to divorce
For purposes of subsection (a)(2), a transfer of
property is incident to the divorce if such transfer –
(1) occurs within one year after the date on which
the marriage ceases, or
(2) is related to the cessation of the marriage.
(Emphasis added)
B. This Stipulation and Order is “related to the
cessation of the marriage’ and therefore “incident to the divorce” because it
is a divorce or separation instrument under IRC § 71(b)(2)(A) which modifies
the Judgment. Under Private Letter Rulings, a transfer pursuant to a judicial
modification of the dissolution of judgment that occurs more than six years
after the cessation of the marriage is treated as related to the cessation of
marriage. “[An]y order from the divorce court that specifically modifies an
original divorce or separation instrument must be considered related to the
cessation of the marriage, even if such an order occurs years after the
divorce.” (LTR Ruls. 20126005, 20042003, 200709014.)
3. ADDITIONAL CHILD SUPPORT:
A. Upon the receipt of the property from Petitioner to
Respondent as set forth above, Petitioner shall be deemed to have fully
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satisfied any and all Court-Ordered additional child support and child
support related obligations owed to Respondent under Paragraphs 53 and 54 of
the Judgment. Respondent specifically waives any and all claims for interest,
costs and delinquency penalties relating to any and all additional support
payments due from Petitioner to Respondent.
B. The parties declare the following:
(1) They are fully informed of their rights
concerning child support.
(2) The Stipulation and Order is being agreed to
without coercion or duress.
(3) The Stipulation and Order is in the best
interests of the parties’ children.
(4) The needs of the children will be adequately
met by this Stipulation and Order.
(5) The right to support has not been assigned to
the county pursuant to § 11477 of the Welfare and Institutions Code and no
public assistance application is pending.
4. SPOUSAL SUPPORT:
A. Upon the receipt of the property from Petitioner to
Respondent as set forth above, Petitioner shall be deemed to have fully
satisfied any and all Court-ordered spousal support and spousal support-
related obligations owed to Respondent under Paragraphs 35-37 of the
Judgment. Respondent specifically waives any claims for interest, costs and
delinquency penalties relating to any and all spousal support payments due
form Petitioner to Respondent.
B. Upon the completed transfer of property as set forth
above:
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(1) Effective October 1, 2013, Petitioner shall
have no further duty or obligation to pay spousal support to Respondent, or
to provide life insurance security for spousal support to Respondent, or to
name Respondent as beneficiary of any life insurance policy he owns;
(2) Any and all spousal support or spousal support
related obligations imposed by the judgment upon Petitioner in favor of
Respondent shall be deemed satisfied as of September 30, 2013.
(3) Respondent’s right to spousal support shall be
terminated effective October 1, 2013. The Court shall be immediately and
forever divested of jurisdiction to extend spousal support payments or
jurisdiction for spousal support beyond September 30, 2013. Respondent waives
any rights she may have under In re Marriage of Vomacka (1984) 36 Cal. 3d
459, In re Marriage of Brown (1995) 35 Cal. App 4th 785, and In re Marriage of
Ousterman (1996) 46 Cal. App. 4th 1090; and
(4) Respondent understands that she may never
petition this or any other Court, and that neither this nor any other Court
shall have the power or right to extend her spousal support rights beyond
September 30, 2013. Respondent acknowledges that she has discussed with and
has been advised by her attorney concerning the waiver of her spousal
support rights, and enters into this Stipulation freely and voluntarily,
without coercion or duress
5. ATTORNEY’S FEES AND COSTS: Each party shall bear
their own attorney’s fees and costs in this matter through the entry of this
Stipulation and Order.
6. REQUEST FOR ORDER FOR MODIFICATION OF SPOUSAL
SUPPORT: The Request for Order filed by Petitioner on May 13, 2013, and set
for hearing on October 8, 2013, shall be taken off calendar by Petitioner.
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7. TERMINATION OF ENFORCEMENT ACTIONS: Upon execution
by the parties and subsequent entry of this Stipulation and Order by the
Court, Respondent shall receive the following:
A. Outstanding writs and levies thereon, and cause
to returned and satisfied; and
B. Earnings Assignment Order for Spousal Support.
Respondent shall notify Lockheed Martin Corporation Electro-Optical
retirement Plan to withdraw the Earnings Assignment Order for Spousal
Support, lift the hold placed on Petitioner’s monthly retirement benefits as
well as all future monthly benefits to Petitioner.
8. EXECUTION OF DOCUMENTS: Each party shall execute
forthwith and without undue delay all documents necessary to carry out the
terms of this Stipulation and Order. If a party fails to comply within five
days, the Court may, upon appropriate ex parte motion, appoint the Clerk of
the Court as its Commissioner to execute such documents.
9. RESERVATION OF JURISDICTION: The Court reserves
jurisdiction to make all orders necessary and proper to effectuate the terms
of this Stipulation and Order.
10. EXECUTION BY FACSIMILE SIGNATURE AND IN COUNTERPARTS:
This Stipulation may be executed in counterparts and by facsimile signatures,
either or both of which shall have the same effect of the original signatures
by the parties or their counsel.
11. PERSONAL SERVICE OF THE STIPULATION AND ORDER: Each
of the parties has stipulated that his or her respective signatures herein
below constitute personal service of this Stipulation and Order upon each of
them, effective upon signature of the Order by this Court.
IT IS SO AGREED: (Followed by signature page)
