In re Marriage of Koshney, No. 25233-7-III (Wash. App. 6/21/2007)
| Decision Date | 21 June 2007 |
| Docket Number | No. 25233-7-III.,25233-7-III. |
| Court | Washington Court of Appeals |
| Parties | In re the Marriage of: KRISTEN L. KOSHNEY, Appellant, and DAVID B. KOSHNEY, Respondent. |
Appeal from Spokane Superior Court. Docket No: 96-3-01659-2. Judgment or order under review. Date filed: 04/28/2006. Judge signing: Honorable Jason Russell Nelson.
Counsel for Appellant(s), Lisa Elaine Brewer, Law Office of Lisa Brewer, 1201 N Ash St Ste 101, Spokane, WA 99201-2800.
Counsel for Respondent(s), Peter S Lineberger, Attorney at Law, 421 W Riverside Ave Ste 762, Spokane, WA 99201-0410.
Kristen and David Koshney dissolved their marriage in 1997. The decree of dissolution granted Ms. Koshney 16.25 percent of Mr. Koshney's military retirement benefits. Upon retirement, he waived a portion of his retirement in order to receive disability benefits, thus reducing the amount received by Ms. Koshney. Her motion to clarify or vacate the decree was denied. We affirm.
The Koshneys were married on November 23, 1989. Mr. Koshney was active duty military at this time. The couple divorced in 1997. The decree awarded Ms. Koshney 16.25 percent of his "military retirement." Clerk's Papers (CP) at 118.
On October 1, 2005, Mr. Koshney retired from military service. Because he had served more than 20 years, he had to take a retirement physical to determine his eligibility for disability. Mr. Koshney received a notice from the Veteran's Administration that he was eligible for disability at a 40 percent rating. He opted to take the disability retirement since it made him eligible for several other benefits including rehabilitation and educational costs. It also provided better insurance and tax benefits. Taking disability reduced his retirement amount by 40 percent.
In January 2006, Ms. Koshney filed a motion to clarify the decree regarding the amount of military benefits to which she was entitled. In April, she filed a motion to vacate and amend the decree under CR 60(b)(1), (3), and (11). In May, the parties entered an agreed order that 16.25 percent of Mr. Koshney's monthly gross retirement pay was $194.68 and his gross pay did not include the $632.00 per month he waived for his disability. The question was whether she was entitled to 16.25 percent of the $632.00.
The court determined the decree was unambiguous and denied the motions to clarify and to vacate. This appeal follows.
Ms. Koshney filed CR 60(b) motions. We review a decision on a motion to vacate for abuse of discretion. In re Marriage of Tang, 57 Wn. App. 648, 653, 789 P.2d 118 (1990). An abuse of discretion occurs if the decision is based on untenable grounds or untenable reasons. Id.
A clarification of a dissolution decree explicitly defines the rights and obligations that were previously granted. In re Marriage of Jarvis, 58 Wn. App. 342, 345, 792 P.2d 1259 (1990). Construction of a decree is a question of law to be determined by examining the document itself to find out its intended effect. In re Marriage of Bocanegra, 58 Wn. App. 271, 275, 792 P.2d 1263 (1990), review denied, 116 Wn.2d 1008 (1991). The court uses general rules of construction applicable to statutes, contracts, and other writings to ascertain the meaning of the decree. In re Marriage of Sager, 71 Wn. App. 855, 862, 863 P.2d 106 (1993).
The issue is the amount Ms. Koshney was awarded where the decree stated she was awarded as her separate property "16.25 [percent] of Respondent's military retirement." CP at 118. "Under the Uniformed Services Former Spouses' Protection Act [10 U.S.C. § 1408], disposable retired military pay is subject to division as community property in a dissolution proceeding in Washington." In re Marriage of Jennings, 138 Wn.2d 612, 622, 980 P.2d 1248 (1999). Disposable retired military pay, however, excludes the amounts waived in order to receive veterans' disability payments. Id. at 623 (quoting Mansell v. Mansell, 490 U.S. 581, 584-85, 109 S. Ct. 2023, 104 L. Ed. 2d 675 (1989)). The decree awarded Ms. Koshney 16.25 percent of Mr. Koshney's disposable military retirement; this award did not include any amount waived in order to receive disability payments. The court properly determined the decree was unambiguous.
Ms. Koshney next contends the court should have granted her motion to vacate under CR 60(b)(11), which grants the trial court discretion to vacate an order or final judgment for "[a]ny other reason justifying relief." CR 60(b)(11) is confined to situations involving extraordinary circumstances not covered by any other section of CR 60(b). In re Marriage of Hammack, 114 Wn. App. 805, 809, 60 P.3d 663, review denied, 149 Wn.2d 1033 (2003). "A dissolution decree may be vacated for extraordinary circumstances to overcome a manifest injustice." Id. at 810 (citing Jennings, 138 Wn.2d at 625-26).
Ms. Koshney argued that his waiving $632.00 per month from retirement so he could get disability deprived her of 16.25 percent of that amount, that is, $101.55 per month. She claims this waiver was an extraordinary circumstance.
The Jennings court found the disability waiver resulted in an extraordinary circumstance because the wife was awarded 50 percent of the husband's retirement and a sum of not less than $813.50 per month. Jennings, 138 Wn.2d at 625. The court found the decree was unclear as to whether Ms. Jennings was entitled to 50 percent of the retirement or a sum certain. Id. Mr. Jennings' disability waiver resulted in her receiving a payment of $136.00 per month rather than $813.50. Id. at 617. The court determined the reduction of benefits was an extraordinary circumstance. Id. at 625-26. It thus upheld the trial court's award of compensatory maintenance to correct the situation. Id. at 628-29.
But Jennings is distinguishable. There, the parties were married for all of Mr. Jennings' service career. Id. at 615. Here, the Koshneys were married 6 and one-half years. Mr. Koshney's 20-year military career began before their marriage and continued after the dissolution. The marriage lasted for about one-third of his military career. In these circumstances, his military retirement was not the substantial community asset it was in Jennings. Furthermore, the decree did not award Ms. Koshney a sum certain. She expected to receive $ 297.00 per month. She received $195.00 per month, a loss of $102.00. Ms. Koshney failed to establish an extraordinary circumstance warranting vacating the decree. The court did not abuse its discretion. She is not entitled to compensatory maintenance.
Ms. Koshney next claims that Mr. Koshney violated her rights to procedural due process when he waived a portion of his military retirement without giving her notice and an opportunity to be heard. She cites no authority for this argument. In any event, procedural due process imposes constraints on governmental decisions depriving a property interest. Mansour v. King County, 131 Wn. App. 255, 263-64, 128 P.3d 1241 (2006). Some type of government action is required. Id. None took place here so her claim must fail.
Ms. Koshney also based her motion to vacate on CR 60(b)(3) and (4). Mr. Koshney argues she cannot raise this issue for the first time on appeal. But her briefing at the trial court included some discussion of CR 60(b)(3) and (4). We will review the issue.
Pursuant to CR 60(b)(3), a party may seek relief from an order on the basis of newly discovered evidence that by due diligence could not have been discovered in time to move for new trial. Wagner Dev., Inc. v. Fid. & Deposit Co., 95 Wn. App. 896, 906, 977 P.2d 639, review denied, 139 Wn.2d 1005 (1999). This rule applies only to evidence existing at the time the decree was entered, not later. In re Marriage of Knutson, 114 Wn. App. 866, 872, 60 P.3d 681 (2003). Because Mr. Koshney did not elect his disability waiver until after the decree was entered, CR 60(b)(3) does not apply. See id.
Under CR 60(b)(4), the court may vacate the dissolution for fraud, misrepresentation, or misconduct. In re Marriage of Himes, 136...
To continue reading
Request your trial