475 P.3d 237
Wash. Ct. App.2020Background
- Andrew and Michelle Weiser divorced in 2011; their negotiated property settlement (incorporated into the decree) awarded Michelle 50% of the community portion (45% overall) of Andrew’s military retirement and included an express clause that any reduction caused by conversion to disability pay "shall not reduce the amount the wife is entitled to receive each month under the terms of this order."
- Andrew began receiving disability in lieu of a portion of retirement in August 2012 and thereafter paid Michelle a reduced amount (one half of the remaining retired pay), acknowledging at times that he had underpaid due to calculation error.
- In September 2017 Michelle moved to enforce the Agreement and recover underpayments; a commissioner ordered Andrew to continue paying 45% of the marital portion and indemnify Michelle for reductions, and awarded attorney fees; the superior court denied Andrew’s revision motion and awarded additional fees.
- Andrew defended by invoking the USFSPA and Howell (arguing federal preemption prohibits state-ordered indemnification of disability benefits) and challenged the Agreement’s interpretation; he did not bring a CR 60 motion to reopen the decree.
- Michelle filed a CR 60(b)(11) motion seeking vacatur/clarification and relief (including lifetime maintenance or beneficiary designation); the commissioner denied vacatur and did not decide the survivor-beneficiary issue; the appellate court consolidated the appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether res judicata bars reopening the dissolution decree via a response to an enforcement motion | Michelle: res judicata prevents reopening; enforcement is proper | Andrew: USFSPA/Howell make the decree void as to disability-related provisions, so res judicata cannot apply | Court: Res judicata applies; state court had jurisdiction; Andrew cannot collaterally attack decree without CR 60 relief |
| Whether federal law (USFSPA/Mansell/Howell) preempts enforcement of an agreement clause that preserves the ex-spouse’s monthly entitlement after a disability waiver | Michelle: the negotiated contract is enforceable and its indemnity/guarantee is valid as adopted in the decree | Andrew: Howell and USFSPA prohibit state-ordered indemnification for reductions caused by disability waivers | Court: Howell does not defeat res judicata here; the court enforces the Agreement as written (but interprets orders consistently with USFSPA) |
| Interpretation: Did the Agreement unambiguously require Andrew to reimburse Michelle for any loss from his disability election? | Michelle: Agreement is clear — wife’s monthly entitlement cannot be reduced | Andrew: Agreement intended offsets via property awards and maintenance; no obligation to indemnify from disability pay | Court: Agreement is unambiguous; it required Andrew to ensure Michelle receives the stated monthly amount; the source of funds was not specified |
| Michelle’s CR 60(b)(11) requests (vacatur, nonmodifiable maintenance, survivor-beneficiary designation) | Michelle: decree should be modified/clarified to secure nonmodifiable maintenance or beneficiary designation because of Andrew’s waiver/behavior | Andrew: opposed; proceedings below did not warrant vacatur | Court: Denied vacatur/clarification as to the decree (affirmed); remanded only the unresolved survivor-beneficiary designation issue to the commissioner for decision |
| Attorney fees awarded below and on appeal | Michelle: fees appropriate based on need and Andrew’s ability to pay | Andrew: challenged fee awards | Court: Fee awards affirmed below; appellate fees to Michelle granted upon compliance with RAP 18.1(d) |
Key Cases Cited
- Howell v. Howell, 137 S. Ct. 1400 (2017) (states may not order indemnification that restores a divorced spouse’s share of retired pay reduced by a veteran’s disability waiver)
- Mansell v. Mansell, 490 U.S. 581 (1989) (waived military disability compensation is excluded from divisible disposable retired pay under USFSPA)
- McCarty v. McCarty, 453 U.S. 210 (1981) (pre-USFSPA rule that federal law precluded state division of military retirement pay)
- In re Marriage of Mansell, 217 Cal. App. 3d 219 (1989) (California appellate decision refusing to reopen a prior settlement; res judicata prevents collateral attack)
- In re Marriage of Perkins, 107 Wn. App. 313 (2001) (Washington: dollar-for-dollar reimbursement from disability is prohibited; disability may be considered for maintenance)
- In re Marriage of Brown, 98 Wn.2d 46 (1982) (errors in applying federal law do not divest state courts of subject-matter jurisdiction; judgments are not void for that reason)
- Rose v. Rose, 481 U.S. 619 (1987) (family courts may consider federal benefits when calculating spousal support)