In Re the Marriage of Jennings
958 P.2d 358
Wash. Ct. App.
1998
Check Treatment

*1 Affirmed.

Morgan and concur. JJ., Armstrong, August 11, Reconsideration denied 1998.

Review denied at 137 Wn.2d July [No. 1998.] 20839-3-II. Division Two. In the Matter Jennings, Karen Rae Respondent, Appellant. Jennings, Michael Kevin *2 appellant. Allen, L. of & Jerome Buzzard Buzzard Wagner, Wagner for re- L. Forrest Forrest Law Officeof spondent. — action, the trial court J. this dissolution

Armstrong, Jennings’ Jennings one-half of Karen awarded disability pay. military military retirement, but none of his military entry deter decree, the dissolution After disability and, there had worsened mined that Michael’s disability pay, retire reduced his fore, his but increased Karen’s share the retirement ment. Because this reduced per month, she moved to vacate from $813.50 60(b)(11). granted mo The trial court under CR permanent in an tion and awarded Karen equal if Michael’s received to what she would have amount changed. disability payments Mi not and retirement chael the trial abused its appeals, contending court in vacating discretion the award under CR 60. We agree and, therefore, reverse.

FACTS trial marriage court of Michael dissolved and Karen Karen Jennings, awarding one-half Michael’s military retirement The court awarded Michael pay. and, other half his is military retirement because it law, not divisible under federal all of disability his compens decree, ation.1 At the time of military Michael’s retire $2,139 ment pay was month and his per military disability was per deductions, After Karen received $813.50 as her share of the pay. entry After of the dissolution the Veteran’s Administration ruled that Michael’s disability had wors ened, and his was disability status His changed. $2,285 compensation month, rose and his reduced to month.2 He $272.90 also *3 $1,200 received in per month Social Security disability. Because of in change benefits, the portion Karen’s of the retirement was reduced from to $813.50 Spouses’ (USFSPA), 1Under the Uniform Services Former Protection Act state may “disposable courts subject pay” community treat property retired or retainer 1408(c)(1); proceedings. to in § division dissolution 10 U.S.C. Mansell v. Mansell, 581, (1989). 490 U.S. 109 S. Ct. 104 L. Ed. 2d 675 But Congress expressly disability has excluded the benefits of retired service members 1408(a)(4). “disposable from pay.” § the definition of or retired retainer 10 U.S.C. Thus, Mansell, Supreme in U.S. grant the Court held that the USFSPA “does not power state ment property upon courts the to treat as divisible divorce retire pay disability Mansell, waived has been to receive veterans’ benefits.” 490 U.S. at 594-95. Supreme explained 2Asthe Court in Mansell-. prevent dipping, military may disability In order to double a retiree receive only corresponding

benefits the extent waives to that he amount of his military exempt pay. disability § taxation, [38 U.S.C.] retirement 3105. Because benefits are federal, state, 3101(a), military U.S.C.] § [38 from and local disability their in retirees who waive favor of benefits increase surprisingly, their after-tax income. Not waivers of are com- mon. (footnote omitted). Id. at 583-84

546 under 60. The

Karen moved to vacate the decree CR in the reduction retire postdissolution court found that circumstances” “extraordinary ment benefits constituted 60(b)(11) and the decree. court then CR vacated under equal in an to what awarded Karen maintenance amount original would have received under the she unchanged. Michael’s status remained trial court erred

Michael contends the decree under Civil Rule vacating original 60(b)(11). In addition reasons set forth specific to 60(b)(11) (1)-(10), CR the court to vacate permits sections from the “[a]ny operation for other reason relief justifying 60(b)(11). is limited CR This subsection judgment.” of involving “extraordinary situations circumstances.” to Flannagan, re 42 Wn. of (1985). ‘irregulari “The relate 1247 circumstances must or togo ties are extraneous to the action of court ” Id. question regularity proceedings.’ its Keller, P.2d State 647 (quoting (1982)). is A motion to under CR 60 vacate court, and of the trial its decision directed the discretion In re abuse this discretion. only be reversed an will Shoemaker, 116, 120-21, 904 P.2d Marriage of settle postdecree challenges But 60(b)(11) ments, discretion to vacate under CR the court’s have reopened settlements been Froperty has been limited. 60(b)(11) three cases: only Washington CR under (1987); Parks, Marriage of Wn. Gir 214; and In re Marriage Flannagan, (1985). Each case oux, P.2d 160 ret circumstance,” “extraordinary involved the same Former the Uniform Services application roactive *4 (USFSPA).3 Parks, See App. Act 48 Wn. Protection Spouses’ 222; Giroux, 41 42 Wn. at Flannagan, 169; Wn. at in response the USFSPA Congress at 321-22. enacted § 3 10U.S.C. 1408.

547 v. Mc McCarty Supreme the U.S. Court’s decision Carty, 453 U.S. 210, 2728, Ct. L. 2d 101 S. 69 Ed. 589 (1981), held that which state courts are from prohibited treating military pensions as dis community property Mansell, Mansell solution U.S. proceedings. 109 S. 104 L. 2d Ct. Ed.

In Flannagan, court, the trial following McCarty, awarded two servicemen their entire retirement benefits. After passed USFSPA, the Congress permits which state courts to treat military community prope rty,4 the spouses moved to vacate the decrees. Flannagan, at 216-17. held that spouses We were 60(b)(11) (1) entitled to relief under CR for four reasons: the clear ill congressional desire all removing effects (2) the McCarty, speed passed with Congress (3) USFSPA; the anomaly of allowing military pensions to be divided before McCarty USFSPA, and after the but not McCarty, during reign short limited number of decrees that could be reopened following our de Flannagan, cision. at 222. “we But empha importance size[d] the of finality and the limited nature of our from Parks, Id. at accord 218; deviation the doctrine.” 48 Wn. App. at 169.

The remaining cases have denied relief under CR 60(b)(11). Pearson, In Ross v. 610-11, Wn. App. (1982), we refused to relief grant under 60(b)(11) CR where the judge failed to allocate the husband’s insurance payments and the 60(b)(1) husband failed to bring CR motion for inadvert ence year within one after entry the decree. Burkey, 488-91, (1984), Three Division held that the trial court abused its finding discretion in inadequate representation justi 60(b)(11). fied vacating decree under CR The court noted that in retrospect separation agreement appeared husband, to favor the but concluded that wife’s representation did not constitute “mani inadequate Id. injustice” fest or “unusual circumstances.” 490-91 & 1408(c)(1); Mansell, § 4See 10 U.S.C. U.S. at 584.

548 648, 654-56, In In 57 App. re Wn. Marriage Tang, n.2. of (1990), One relief grant 789 P.2d 118 Division refused list, not agreement settlement did even value, or and left them as ten property characterize their in The held these not the ants common. court that were 60(b)(11). Tang, “unusual CR contemplated by situations” held it to allow at 656. Division One also error a property payment modification of husband’s schedule in of his financial difficulties emergency the wife because Irwin, 38, 64, 64 822 re Wn. Marriage business. of (1992). 41 in In re Similarly, Marriage of Yearout, P.2d 797 (1985), 897, 707 P.2d 1367 we held Wn. not “unusual circumstances” where a husband had shown that his reducing maintenance was justification his Although Yearout income had declined. substantially and spousal involved the modification of case settlement, prop the case to the not a is similar property a the parties incorporated settlement cases because erty their of into decree separation agreement nonmodifiable at 899. dissolution. Id. inter recognized compelling policy

“We have previously v. in Martin settlements.” favoring finality property est (citing 1085 Martin, P.2d Wn. (1969)). In Peste 459 P.2d 70 Peste, Peste v. Wn. App. divorce Peste, said, “To collateral attacks permit upon we showing dispar any more than a without proceedings Box, affecting award, a Fandora’s open would ity busi titles and future marriages, property real subsequent of both The uncertainties spouses. ness endeavors Martin, 25. In devastating.” be Id. at result would would State retroactively apply Supreme refused to our we Payne Payne, 82 Wn.2d Court’s decision decision Martin, Payne at 689. to divi subject were military pensions held that 574-77. 82 Wn.2d at Payne, in a of dissolution. sion would raise application noted retroactive We under and would petitions” similar countless “specter Martin, of finality. interest mine policy Brown, App. at 690. (1982), the Washington Court Supreme that “in

recognized the conflict between the principles finality judgments validity judgments, mod ern judicial development has been to favor rather finality than validity.”

We conclude that to set aside a final dissolution decree 60(b)(11) pursuant to CR a party must show more than a postdecree change the value of Here, assets. Karen Jen nings has only shown that one asset awarded to her has *6 declined substantially value. This is not an “extraordi 60(b)(11). nary circumstance” within the meaning of CR

We reverse and remand to reinstate the final decree.6 Bridgewater, A.C.J., concurs. — J. (dissenting) The trial court dissolved the

Morgan, marriage March 1992. It awarded Michael’s military retirement military disability pay as fol- lows:

The military retirement presently being received by the Respondent [husband] is a marital asset to be by divided the Court property. parties The were married for the entire length of the service duty member’s active and the Petitioner is [wife] therefore medical, entitled to full commissary and Jennings argues 5Karen today that our decision will result in the nullification of after settlements whenever a former changed soldier’s status is entry recognized of the final decree of dissolution. But this need not be the case. As has states, been requiring nonmilitary in other spouse protect by can her asset military spouse indemnify any to her for reduction in retirement (Fla. Abernathy Fishkin, 1997); benefits. See v. 699 So. 2d Hisgen 239-40 (S.D. Hisgen, 1996); Strassner, 554 N.W.2d 895 S.W.2d (Mo. 1995); McHugh McHugh, Ct. 124 Idaho (Ct. App. 1993); Owen, Owen v. 14 Va. 419 S.E.2d 269-70 (1992). Indemnification clauses have been held not to violate the Mansell Court’s prohibition against dividing disability benefits, military spouse, because the who waives disability payments, retirement benefits to indemnify receive increased can nonmilitary spouse Hisgen, 498; from other available assets. N.W.2d Abernathy, 240; Owen, accord 699 So. 2d at 419 S.E.2d at 269-70. today 6Wedo not Jennings decide whether Karen has other remedies available Jennings’ military enforce the award of her share of Michael retirement. fifty percent entitled to The Petitioner is privileges. exchange (50%) paid the pension and shall be gross of the Thirteen Dollars and Eight Hundred of not less than sum ($813.50) the month commencing with Fifty per cents Thirteen Hundred Eight allotment of 1991. Said September ($813.50) be paid month shall per cents Fifty Dollars and provi Center under the Army Finance directly to her from the Protection Spouses Former Services of the Uniformed sions The Petitioner will PL 101.510. by redefined Act and further (50%) pay and she gross fifty percent receive tax withholding like of the percentage entitled to a should be (COLAS). por adjustments credit, living cost of as well as in order by Respondent pay waived of the retirement tion Affairs, is from Veteran’s disability compensation receive be awarded to and as such should by the Court not divisible provi property under separate sole and as his Law.[7] Respondent of Federal sions maintenance, al- not award posttrial court did

The trial for pretrial it entered at the time of trial. unpaid remained entered, Michael was receiv final decree was When in the amount disability pay ing $2,285 per disability, up Later, an increase he secured retirement, down decrease month, corresponding and a result, began Karen direct month. As a to $272.90 or more month, of the $813 instead receiving *7 decree. the 1992 been set forth requiring an order 1995, Karen obtained On October (1) not be the decree should why cause Michael to show (2) should 60(b); maintenance why to CR pursuant vacated new half of the to one amount equal an not be awarded (3) not be the decree “should why and disability payments; no less to to continue require [Michael] to clarified hearing, After to [Karen].”9 than $813 be set aside decree “shall the 1992 court ordered trial Papers 19-20. 7Clerk’s

8Id. at 67.

9Id. at 35. retirem of [Michael’s] it relates to division insofar as Karen “non-modifiable ent,”10 and that Michael pay in an amount suf maintenance”11 spousal compensatory 1992 decree original Karen the of the ficient to benefits give month).12 filed then (i.e., not than less appeal. this for relief. She ground

I out of hand Karen’s first reject aside, it and CR enforce the not set seeking no role this case. plays A for relief. ground I out of hand Karen’s second reject trial court not resurrect may postdecree Mason, Mason v. previously expired, has Brown, Brown v. 8 P.2d 1104 (citing denied, review (1973)), (1985), 507 P.2d 157 Wn.2d maintenance more initially may postdecree nor it award after the decree has become years than three final.13 relief,

I third for even accept ground Karen’s on it, may any trial court did not reach because we affirm Michielli, State v. ground proof. within the pleadings (citing Tropiano 229, 242, 132 Wn.2d 937 P.2d 587 (1986)). Tacoma, 873, 876, P.2d 801 City 105 Wn.2d relief, her third Karen asked that asserting ground require [Michael] decree “be clarified to continue to no than month to [Karen].”14 less modi clarified, A dissolution decree be may opposed Rivard fied, rights when it leaves ambiguous party. Rivard, Chavez 415, 418, (1969); 451 P.2d 677 75 Wn.2d 10Id. at 56.

11Id.

12Id. at 69-70. thing passing, 13In I note that there is no such as “non-modifiable also judgment awarding compensatory spousal A maintenance is non- maintenance.” 26.09.070(7), parties agree, if but not otherwise. re modifiable so RCW Short, judgment awarding A 26.09.090, which do not maintenance must rest on the factors set forth RCW equitable property “compensation.” judgment imposed dis A to effect an include may “compensatory,” but is it not a for “maintenance.” tribution be Papers at

14Clerk’s 35. *8 Chavez, review 432, 435, App. 80 Wn. 909 P.2d denied, Jarvis, In re Marriage of (1996); 129 Wn.2d 1016 In re Marriage 342, 345, (1990); 58 Wn. 792 P.2d Haugh, (1990); see 1, 8, 58 Wn. 790 P.2d 1266 v. Ackerlund, Byrne 108 Wn.2d 739 P.2d 1138 (1987). The decree in this case was from and af ambiguous ter the time of entry; its it can be read as Karen a giving (50 interest in a fund percentage fluctuating percent little or pay, might Michael’s however much that be), judgment or a for not less personal against than of the amount of his (regardless $813 benefit), his military with on behalf if the would so consent. Faced with this ambiguity, the trial court’s task was ascertain its own intent as Gimlett, In re Marriage of the time it entered the (1981); Chavez, 699, 704-05, 435-36; Jarvis, at and it did not when, effect, discretion ruled abuse its it it intended to Karen for not originally give judgment less than result,

In I reaching this note that has been final since and that no one has ever contended it was erroneous entered. It follows that when by are bound its and that the trial parties provisions, authority clarify court had to construe and those provisions insofar as were they ambiguous. result, this I that Karen and reaching acknowledge terminology. ensuing

the trial court used erroneous however, is semantical rather than substantive. problem, the trial court erred it was set- Semantically, by saying (2) by ting actually enforcing, aside a decree it was it was “non-modifiable saying granting compensatory maintenance,” it really clarifying judg- when was spousal an division of granted equitable ment effect previously however, the court Substantively, parties’ property. entitled to its earlier so that Karen would clarify month it had originally receive the minimum intended. McHugh, McHugh result, I note this reaching (Ct. 1993), similar very

Idaho *9 would receive that wife There, agreed the parties case. pay. Navy month of the husband’s per $360 decreased ‘for not to be increased or “This amount was cost-of-living except by application reason’ any rata entitled to a increases, pro was [the wife] which McHugh, was P.2d at 114. The agreement share.” entered into a decree that was incorporated in December 1990. first 1990 and first clarified April receive 18 order that the wife would clarifying provided Navy and that pay, her husband’s retirement percent of A or after the first directly. year the wife so would order, the increased the husband’s disabil clarifying Navy As pay correspondingly. and reduced his retirement ity pay result, began receiving a direct the wife $173 The trial court with responded month. instead it that the wife clarifying a second order stated cost-of- $360, pertinent entitled to the original plus was amount now increases, though represented even that living The trial court pay. of the husband’s retirement percent ($360) had been ruled, effect, that the dollar amount (18 former amount percentage intended to control over the recognized On the Idaho Court of appeal, Appeals percent). earlier merely enforcing the trial court was its affirmed, do here. just and it as we should bottom, At it to me that courts should apply seems that, did even so The trial court beget justice. law as reason, I it used the labels. For that would wrong of an result, entry the trial court’s but remand for affirm orig- intent entering order the court’s clarifying dis- pay, degree require inal tribution, not than less at 137 Wn.2d granted

Review