In re Marriage of Gravelle, 32700-1-III

• Decision Date: 07 July 2016
• Docket Number: 32700-1-III,33178-4-III
• Court: Washington Court of Appeals
• Parties: In the Matter of the Marriage of SANDRA J. GRAVELLE, Respondent, v. THOMAS LEE GRAVELLE, Appellant.

In the Matter of the Marriage of SANDRA J. GRAVELLE, Respondent, v. THOMAS LEE GRAVELLE, Appellant.

Nos. 32700-1-III, 33178-4-III

Court of Appeals of Washington, Division 3

July 7, 2016

UNPUBLISHED OPINION

SIDDOWAY, J.

"[I]n order to promote the amicable settlement of disputes" attending separation and dissolution of marriage, RCW 26.09.070 authorizes parties to a marriage to enter into a written separation contract that binds the court in a later dissolution action, "unless [the court] finds ... that the separation contract was unfair at the time of its execution." RCW 26.09.070(1), (3). And where agreed in a separation contract, the decree of dissolution "may expressly preclude or limit modification of any provision for maintenance, " RCW 26.09.070(7), even though, absent a separation contract, a trial court cannot make a maintenance award nonmodifiable. RCW 26.09.170(1); In re Marriage of Short, 125 Wn.2d 865, 876, 890 P.2d 12 (1995).

In this case, Thomas Gravelle moved to modify provisions of the decree dissolving his marriage to Sandra Gravelle. The decree incorporated the Gravelles' written separation agreement that required Mr. Gravelle to share his military retirement benefits with Ms. Gravelle and pay maintenance in a dollar amount that was equal to half of his veterans' disability benefits. In moving to modify, he characterized both as maintenance. The motion was denied by a court commissioner and revision was denied on the basis that the provisions appeared to be a property division. Mr. Gravelle then moved to vacate the decree on the basis that federal law preempts state law and prohibits the division of veteran's disability benefits in a dissolution action.

In denying the motion to vacate, the trial court essentially reconsidered the basis for its prior ruling. It found that the parties' agreement said nothing about dividing veterans' disability benefits and concluded the payments were maintenance, as characterized by the separation agreement.

The trial court's findings in denying the motion to vacate reflect a closer examination of the separation contract and a candid reassessment of the issues presented by the earlier motion to modify. Because they are supported by substantial evidence, we affirm.

FACTS AND PROCEDURAL BACKGROUND

Thomas and Sandra Gravelle were married for almost 29 years, during which Mr. Gravelle served in the military. The couple separated in September 2009 and entered into a separation agreement at the same time. The agreement contained the following provisions relevant in this appeal:

3. RETIREMENT ACCOUNTS:

a. [Mr. Gravelle] agrees to pay [Ms. Gravelle] one-half (1/2) of his [United States Marine Corps (USMC)] retirement. [Mr Gravelle] currently receives One Thousand Seven Hundred Eighteen and No/100 Dollars ($1, 718.00) per month. [Mr Gravelle] agrees to pay [Ms. Gravelle] the sum of Eight Hundred Fifty-Nine and No/100 Dollars ($859.00) per month. Payment shall be made on the first day of each month by automatic payment to [Ms. Gravelle]'s bank account.

b. Each year [Mr. Gravelle] shall provide [Ms. Gravelle] verification of his USMC retirement pay, and as [Mr Gravelle]'s USMC retirement pay may increase, payment to [Ms. Gravelle] shall increase accordingly to equal one-half (1/2) of [Mr. Gravelle]'s USMC retirement, and continue to be paid via automatic payment to [Ms. Gravelle]'s bank account.

4. MAINTENANCE:

a. [Mr. Gravelle] agrees to pay monthly maintenance to [Ms Gravelle] in the sum of Four Hundred Twenty-Two and No/100 Dollars ($422.00). Payment to [Ms. Gravelle] shall be made on the first day of each month via automatic payment into [Ms. Gravelle]'s bank account.

b. The obligation to pay future maintenance is terminated upon the death of either party.

Clerk's Papers (CP) at 10-11. Although the separation agreement makes no mention of veterans' disability benefits, the $422.00 payment required by the Maintenance section equaled one-half of what Mr. Gravelle was receiving in veterans' disability benefits at the time of the parties' separation.

Two months after entry into the separation agreement, the parties entered into a written amendment. They revised the "Retirement Accounts" section to provide that the retirement payment to Ms. Gravelle would continue in the event of Mr. Gravelle's remarriage, and to add the language, "Obligation to pay future monthly retirement payments shall only be terminated if [Ms. Gravelle] remarries, or upon the death of either party." CP at 31.

They amended the "Maintenance" section to provide that if Mr. Gravelle's monthly USMC retirement decreased, he would increase his monthly maintenance payment by a like amount; that his "monthly maintenance and retirement payment obligation to [Ms. Gravelle] shall not decrease;" that Mr. Gravelle would continue to pay maintenance in the event he remarried; and that monthly maintenance would terminate only if Ms. Gravelle remarried or upon the death of either party. CP at 32.

In December 2009, the court entered a decree of dissolution that incorporated both the September separation agreement and the November amendment.

Motions to Modify Maintenance and to Vacate Decree

A little over four years later, in February 2014, Mr. Gravelle filed a motion to terminate or reduce maintenance. He contended his payments under both the Retirement Accounts and Maintenance sections of the separation agreement were maintenance. The basis for the modification was his advancing Parkinson's disease, a recent surgery, a recent injury and his inability to work.

A court commissioner denied his motion, finding that the parties intended the Retirement Accounts and Maintenance provisions of their separation agreement to be nonmodifiable. She also observed, in orally ruling, that the nonmodifiable character of the payments, together with the absence of any reference to Mr. Gravelle's ability to pay or Ms. Gravelle's need, caused her to conclude the agreement divided property rather than provided for maintenance, despite language to the contrary.

Mr. Gravelle filed a motion to revise the commissioner's ruling, which was denied. In the trial court's oral ruling, which was incorporated into a general order, the trial court reasoned it must first determine whether payments under the Retirement Accounts and Maintenance sections of the agreement were "truly maintenance, " and then, whether they were modifiable. Report of Proceedings (RP) (July 17, 2014) at 22. It determined that "what the parties contemplated doing and what they did do was they divided their property." Id. It then observed:

[A] property division is generally not modifiable unless the whole agreement is totally unfair and inequitable, and I can't see that from the face of it. It looks as if you folks were dividing things pretty equally and pretty evenly.

Id. at 23.

Mr. Gravelle appealed those rulings, and two months later-based on those rulings-he filed a motion to vacate the decree of dissolution. In moving to vacate the decree, he relied on 10 U.S.C. § 1408, the Uniformed Services Former Spouses' Protection Act (USFSPA). It provides an exception to federal preemption of rights to federal military retirement pay only for "disposable retired pay" which is defined to exclude (among other amounts) any amount received on account of disability. And see McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981) (federal law preempts the application of state community property law to military retirement pay). He argued that insofar as the trial court viewed the Maintenance section of the separation agreement as dividing his veterans' disability benefits, it was void under federal law.

At the hearing on the motion to vacate, the parties recognized that because Mr. Gravelle's first appeal was pending, RAP 7.2, which limits trial court authority to act following acceptance of review, might apply. They disagreed as to how it applied. The trial court decided to proceed.

The trial court denied Mr. Gravelle's motion to vacate the decree. With the issue of federal preemption as to veterans' disability entitlement squarely presented, the trial court reconsidered the character of payments under the Maintenance section, stating, "I think I understand this just a little bit more than I did the first go-round." RP (Nov. 21, 2014) at 22. Its written order incorporated its oral ruling. The trial court's changed analysis is reflected in the following statements in its ruling:

[I]f I understand correctly, Mr. Gravelle finds himself in a very undesirable situation. He's got some fairly significant medical issues. ... So he is seeking a way to somehow-somehow get out of the agreement that he entered into when things weren't bad. . . .

The first attempt, of course, was with a motion to modify . [that] came before me as a . . . revision on a motion to modify maintenance. At that point Mr. Gravelle was acknowledging that this $420 a month was maintenance[.] ... I accepted some of [the commissioner's] conclusions that this was a property distribution simply termed as maintenance. . . .

Regardless of what the conclusions were, these parties entered into this agreement. And all of the case law you cited I agree with. The court does not have the authority to order disability payments divided. . . . But the case law is . . . very clear that the court can consider it in the final analysis of how to distribute and divide up property. The conclusion in Kraft^[1] says, "We hold the trial court in a marriage dissolution action may consider military disability retirement pay as a source of income in awarding spousal or child support" ....

. . . Nowhere in the decree is a division of the VA^[2] disability referenced. . . . [T]here is nothing in any of the

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