In re Kaufman

• Decision Date: 27 April 2021
• Docket Number: No. 53366-9-II,53366-9-II
• Citation: 485 P.3d 991
• Parties: In the MATTER OF the MARRIAGE OF Heidi A. KAUFMAN, Respondent, and Geoffrey A. Kaufman, Appellant.
• Court: Washington Court of Appeals

485 P.3d 991

In the MATTER OF the MARRIAGE OF Heidi A. KAUFMAN, Respondent, and Geoffrey A. Kaufman, Appellant.

No. 53366-9-II

Court of Appeals of Washington, Division 2.

Filed April 27, 2021

PUBLISHED OPINION

Glasgow, J.

¶ 1 In 2008, Geoffrey and Heidi Kaufman negotiated a property settlement agreement that was fully incorporated into their marriage dissolution decree. The property settlement agreement and dissolution decree provided for an equal division of the Kaufmans’ community property, including Geoffrey's¹ military retirement, and awarded Heidi permanent, "non-modifiable" spousal maintenance. Am. Clerk's Papers (ACP) at 8. Under the spousal maintenance provision, Heidi was to receive monthly spousal maintenance payments equal to 50 percent of Geoffrey's monthly United States Department of Veteran's Affairs (VA) disability benefit or 50 percent of the amount of monthly military retirement he waived to receive VA disability benefits. If Geoffrey's VA disability benefit increased, Heidi would receive a proportionate increase in her share. There was no appeal of the dissolution decree.

¶ 2 In 2018, Geoffrey's disability rating increased, which permitted him to concurrently receive the full amount of his military retirement and VA disability benefits without waiver, increasing his overall monthly income. Geoffrey then stopped paying Heidi spousal maintenance. Heidi filed a motion to enforce the spousal maintenance provision of the dissolution decree. The trial court granted Heidi's enforcement motion and awarded her back payments and attorney fees.

¶ 3 Geoffrey appeals the order granting Heidi's motion to enforce the dissolution decree, arguing that the spousal maintenance provision in the dissolution decree violated federal and state law, making it void. He also asserts that the unappealed dissolution decree could not have res judicata effect because the spousal maintenance provision was void from its inception. Finally, Geoffrey argues that the trial court erred by awarding Heidi attorney fees below. Heidi requests attorney fees on appeal.

¶ 4 This court recently published diverging opinions in two cases involving similar issues. Here, we follow In re Marriage of Weiser ,² apply res judicata, and conclude that the trial court did not lack subject matter jurisdiction when it entered the original dissolution decree. In doing so, we depart from the reasoning in In re Marriage of Tupper .³

¶ 5 The Kaufmans’ dissolution decree was a valid, unappealed final judgment on the merits, and the spousal maintenance provision is not void. Res judicata prevented Geoffrey from collaterally challenging the validity of the dissolution decree in his response to Heidi's motion to enforce. The trial court did not lack subject matter jurisdiction to enter the dissolution decree, and Geoffrey has not shown any other basis for setting it aside. The trial court properly awarded Heidi attorney fees under RCW 26.18.160, and we grant her request for attorney fees on appeal. We affirm.

FACTS

¶ 6 Geoffrey and Heidi were married in 1985, separated in 2007, and in 2008 entered into a property settlement agreement that was fully incorporated into their dissolution decree. Geoffrey served in the Navy during the Kaufmans’ marriage. In 2008, Geoffrey was retired and the VA had deemed him 40 percent disabled. Geoffrey received military retirement, but he had elected to waive some of his military retirement in favor of VA disability benefits due to his 40 percent disability rating. Accordingly, his military retirement pay was reduced by the amount of the VA disability he received.

¶ 7 Geoffrey and Heidi, each represented by counsel, negotiated a property settlement agreement. The property settlement agreement provided for an equitable division of community assets and debt and stated that Heidi would have a "[o]ne-half interest in [Geoffrey's] Navy retirement ... pursuant to an Order for Division of Military Retirement." Am. Sealed Clerk's Papers (ASCP) at 240. The trial court entered a military pay division order that same day.

¶ 8 The property settlement agreement also provided that Geoffrey would pay Heidi "spousal maintenance in a sum representing 50 [percent] of [his] Navy VA waiver/disability." ASCP at 239. The spousal maintenance payments were nonmodifiable and permanent. Because Geoffrey at that time received $610 per month in VA disability pay, the agreement stated that Heidi would receive $305 per month in maintenance. The property settlement agreement further provided:

In the event the VA waiver/disability portion and payment increases (either as a result of [cost of living adjustments] or as a result of an increase in the VA waiver portion to the detriment of the retainer pay), [Heidi] shall be entitled to her proportionate increase (50 [percent] of the adjusted VA waiver/disability) in spousal maintenance and effective as of the date of the adjustment.

Id. Geoffrey was also required to provide Heidi with updated information and documentation about his VA disability eligibility and payments.⁴

¶ 9 The trial court then entered findings of fact and conclusions of law and a decree dissolving the Kaufmans’ marriage. The trial court found that the property settlement agreement should be approved, including the maintenance provision. The trial court further concluded that the property settlement agreement was fair and equitable. The dissolution decree provided that Geoffrey and Heidi's community property would be "identified and divided in the Property Settlement Agreement." ACP at 7. The decree replicated the property settlement agreement's maintenance provision nearly verbatim, changing only the commencement date for payments. Neither party appealed the dissolution decree.

¶ 10 In 2018, the VA increased Geoffrey's disability rating to 60 percent. In accordance with 10 U.S.C. § 1414, Geoffrey then began receiving the full amount of both his military retirement and VA disability benefit, increasing his overall monthly income.

¶ 11 Geoffrey wrote a letter to Heidi informing her that because his disability rating had been elevated, he no longer had to waive any of his retirement pay and he believed the maintenance provision no longer applied. Geoffrey stated, "The only change to you is you will now receive all that is owed to you in one monthly payment (from [the Defense Finance Accounting Service] (DFAS)) instead of two (one from DFAS and one from me)." ASCP at 268. Geoffrey stopped making maintenance payments to Heidi in May 2018.

¶ 12 Heidi's lawyer wrote a letter to Geoffrey instructing him to resume maintenance payments and to pay Heidi the amount he had withheld. The letter stated, "[T]he amount you receive under the ‘VA waiver’ or ‘VA disability’ is just the amount upon which the amount to be paid in maintenance is determined. Now that your ‘VA waiver’ is simply ‘VA disability’ the requirement for maintenance still applies." ACP at 40.

¶ 13 Geoffrey did not resume maintenance payments. Heidi filed a motion to enforce the maintenance provision of the dissolution decree. Heidi argued that the spousal maintenance provision remained enforceable and that res judicata prevented Geoffrey from collaterally attacking the terms of the dissolution decree. Heidi also asked for attorney fees under RCW 26.09.140.

¶ 14 In response to Heidi's enforcement motion, Geoffrey advanced two main arguments. First, he contended that he had "completely complied" with the maintenance provision so there was nothing to enforce. ACP at 148. Geoffrey argued that under the terms of the spousal maintenance provision, he "was to pay [Heidi] 50 [percent] of any amount of the waiver/disability and [Heidi] was to then get a check for the difference of 50 [percent] of [Geoffrey's] taxable retirement pay." ACP at 147. "The maintenance clause dividing [Geoffrey's] waiver/disability ... was purely a way of capturing the difference in the reduction caused by the waiver itself." Id .⁵

¶ 15 Second, Geoffrey argued that the trial court could not enforce the maintenance provision because it divided his VA disability benefits in violation of state and federal law. Specifically, he argued that the law prohibited state courts from ordering a service member to divide military disability payments or indemnify the former spouse for any losses resulting from the service member receiving disability payments instead of retirement payments. Geoffrey argued that the dissolution decree was void when entered because it illegally divided his military disability retirement and was not subject to res judicata. Geoffrey did not file a CR 60(b) motion to vacate the dissolution decree or seek to modify the maintenance award under RCW 26.09.170(1), however.

¶ 16 The trial court granted Heidi's motion to enforce. The trial court found that the agreement did not require Geoffrey to make payments from his disability retirement pay, nor did any court order require him to do so, and "the aggregate amount of the VA [w]aiver/[d]isability is but a means by which they agreed on a figure for spousal maintenance as part of an overall, fair division of property and debts." ACP at 231. The trial court concluded that "the property settlement agreement [was] a contractual obligation requiring the former husband to pay [a certain] amount for spousal maintenance." ACP at 232. Without explicitly referencing res judicata, the trial court ruled that the agreement was "a binding contract," was "not void[ ] or voidable," and was "enforceable per the original terms." Id. The trial court granted Heidi's request for attorney fees.

¶ 17 In October 2019, the trial court entered a monetary judgment against Geoffrey for $10,435.51 in past due spousal maintenance, plus $1,052.42 in interest. The trial court also awarded judgment against Geoffrey for $10,000.00 for attorney fees and costs.

¶ 18 Geoffrey appeals.

ANALYSIS

A. Military Disability Retirement in Marriage Dissolution Proceedings

¶ 19 The federal government provides retirement pay to...