In re the MARRIAGE OF Gregory L. SMITH

• Court: Washington Court of Appeals
• Writing for the Court: QUINN-BRINTNALL, J.
• Citation: Smith v. Smith, 241 P.3d 449 (Wash. App. 2010)
• Decision Date: 26 October 2010
• Docket Number: No. 39188-1-II.
• Parties: In re the MARRIAGE OF Gregory L. SMITH, Petitioner, and Tammy L. Smith, Respondent.

241 P.3d 449

In re the MARRIAGE OF Gregory L. SMITH, Petitioner,
and
Tammy L. Smith, Respondent.

No. 39188-1-II.

Court of Appeals of Washington,Division 2.

Oct. 26, 2010.

241 P.3d 450

COPYRIGHT MATERIAL OMITTED.

241 P.3d 451

Christopher Keith Stump, Law Offices-C. Keith Stump, Ketchikan, AK, for petitioner.

David C. Hammermaster, Sumner, WA, for respondent.

QUINN-BRINTNALL, J.

¶ 1 After the trial court denied Gregory Smith's motion to reconsider a domestic relations order (DRO) granting Tammy Sisich, ¹ his former wife, part of his retirement benefits, Smith filed this appeal. Finding no merit to his claims of error, we affirm.

FACTS

¶ 2 Smith and Sisich married on April 13, 1985, separated on April 26, 1998, and had their marriage dissolved by stipulated decree on May 18, 2000. Smith's attorney withdrew before the decree was finalized.

¶ 3 The parties agreed to findings of fact stating that their community property included Smith's “rights accrued by virtue of present, past or future employment including but not limited to pension, retirement, profit sharing, reserve vacation, sick leave, insurance coverage, social security benefits and the like,” in addition to real property in Utah. Clerk's Papers (CP) at 143-44. The findings added that Smith had no real or personal separate property and that Sisich's disability claim was her separate property. Based on these and the other findings, which were incorporated into the dissolution decree, the court concluded that the distribution of property in the decree was fair and equitable.

¶ 4 The decree awarded to Smith, as his separate property,

[o]ne-half of any and all rights accrued by virtue of present, past or future employment of the husband including but not limited to pension, retirement, profit sharing, reserve vacation, sick leave, insurance coverage, social security benefits and the like during the length of their marriage;

Any and all property acquired by the husband after the date of separation, April 26, 1998.

CP at 18. The separate property awarded to Sisich included

[o]ne-half (1/2) of any and all rights accrued by virtue of present, past or future employment of the husband including but not limited to pension, retirement, profit sharing, reserve vacation, sick leave, insurance coverage, social security benefits and the like for the length of the marriage.

CP at 19. The court maintained jurisdiction to approve domestic relations orders relating to the award of pension benefits. ²

¶ 5 Smith worked as an air traffic controller with the Federal Aviation Administration during the marriage and for 10 years after the parties separated. He earned benefits under the Civil Service Retirement System until he retired in May 2008. When Sisich's attorney wrote to him shortly thereafter, requesting that he forward half of his retirement checks to Sisich, Smith did not respond. Sisich then moved for entry of a DRO directing the retirement administrator to divide Smith's retirement benefits according to the dissolution decree so she could receive her share directly. Sisich asked the court to employ the “customary formula” that divided the number of months of marriage by the number of months Smith worked, with the result multiplied first by half and then by his monthly pension payment. On October 31, 2008, the court granted the motion and entered a DRO calculating Sisich's share of Smith's retirement benefits according to the formula she suggested.

¶ 6 Smith moved for reconsideration on November 10. He argued that the court's formula incorrectly included (1) benefits he earned while the parties lived in Utah, a noncommunity property state; (2) benefits he earned in lieu of Social Security; and (3)

241 P.3d 452

benefits based on salary increases that occurred after the parties separated. He contended further that an actuary needed to calculate Sisich's share of his retirement.

¶ 7 Smith then moved to schedule a hearing on his motion for reconsideration or, in the alternative, for relief from judgment under CR 60. Sisich responded that the motion for reconsideration was untimely as well as an invalid attack on the dissolution decree. The trial court denied Smith's motion for reconsideration because it was untimely and because all retirement benefits earned during the marriage were available for division as set forth in the DRO. The court subsequently filed an amended DRO after adjusting the months of marriage and employment in the formula used to calculate Sisich's share of the retirement benefits.

¶ 8 Smith appeals the amended DRO and the order denying his motion for reconsideration.

ANALYSIS Timeliness of Motion for Reconsideration

¶ 9 Smith argues initially that the trial court erred in denying his motion for reconsideration as untimely. Citing CR 59, Sisich responds that the trial court correctly concluded that the motion was untimely because Smith did not note the motion or serve it within 10 days of the DRO ruling.

[1] ¶ 10 With the exception of Sisich's brief discussion of CR 59, neither party cites authority or argument for its position in its appellate brief, referring this court instead to the pleadings in the clerk's papers. Accordingly, we could decline to consider the issue. See Bldg. Indus. Ass'n of Wash. v. McCarthy, 152 Wash.App. 720, 746 n. 11, 218 P.3d 196 (2009) (issues relying on incorporated trial court briefing are considered abandoned). Given Sisich's mention of CR 59, however, as well as the fact that the trial court erred in finding the motion untimely, we will address the issue.

¶ 11 The trial court found Smith's motion for reconsideration untimely because he did not note the motion when he filed it. CR 59(b) establishes the time limits for a motion for reconsideration:

A motion for a new trial or for reconsideration shall be filed not later than 10 days after the entry of the judgment, order, or other decision. The motion shall be noted at the time it is filed, to be heard or otherwise considered within 30 days after the entry of the judgment, order, or other decision, unless the court directs otherwise.

[2] [3] ¶ 12 A party's failure to note a motion for reconsideration for hearing on the day of filing does not render the motion untimely. West v. Thurston County, 144 Wash.App. 573, 578 n. 1, 183 P.3d 346 (2008); see also 4 Karl B. Tegland, Washington Practice CR 59 author's cmts. at 497 (5th ed. 2006) (counsel's failure to note the motion for hearing as required by the rule does not render the motion untimely and does not preclude an appeal from the ruling on the motion); In re the Matter of Det. of Turay, 139 Wash.2d 379, 391, 986 P.2d 790 (1999). Moreover, as amended in 2005, CR 59 does not require that the motion for reconsideration be served within the same 10-day time limit that applies to filing the motion. 4 Tegland, supra, at 496, 504-05. CR 59(b) requires only that the motion be filed, not necessarily served, within 10 days after entry of judgment. 4 Tegland, at 68 (Supp. 2010). Smith filed his motion for reconsideration on the tenth day after the DRO was filed. Consequently, his motion was timely under CR 59(b).

¶ 13 We next address the trial court's alternative basis for denying the motion for reconsideration and Smith's substantive challenges to the amended DRO.

Standard of Review

¶ 14 In entering the DRO and denying the motion for reconsideration, the trial court necessarily interpreted the property division in the decree and the agreed findings it incorporated. The question here is whether that interpretation was correct.

[4] [5] [6] [7] ¶ 15 We review de novo the language in a dissolution decree and a DRO.

241 P.3d 453

In re Marriage of Gimlett, 95 Wash.2d 699, 704-05, 629 P.2d 450 (1981). When an agreement is incorporated into a dissolution decree, we must ascertain the parties' intent at the time of the agreement. In re Marriage of Boisen, 87 Wash.App. 912, 920, 943 P.2d 682 (1997), review denied, 134 Wash.2d 1014, 958 P.2d 315 (1998). In such a situation, the parties' intent generally will be the court's intent. Boisen, 87 Wash.App. at 920, 943 P.2d 682. If the language of the decree is unambiguous, there is no room for interpretation. In re Marriage of Bocanegra, 58 Wash.App. 271, 275, 792 P.2d 1263 (1990), review denied, 116 Wash.2d 1008, 805 P.2d 813 (1991). Normally, we are limited to examining the provisions of the decree to resolve issues concerning its intended effect. Gimlett, 95 Wash.2d at 705, 629 P.2d 450.

[8] [9] ¶ 16 The general rules of construction that apply to statutes, contracts, and other writings also apply to findings, conclusions, and decrees. Callan v. Callan, 2 Wash.App. 446, 448-49, 468 P.2d 456 (1970). We read a decree in its entirety and construe it as a whole to give effect to every word and part, if possible. Stokes v. Polley, 145 Wash.2d 341, 346, 37 P.3d 1211 (2001); Callan, 2 Wash.App. at 449, 468 P.2d 456.

Basis of Appeal

[10] ¶ 17 Sisich maintains that this appeal is an untimely effort to modify the dissolution decree, while Smith insists that he is appealing only the DRO and the denial of his motion to reconsider that order. As Sisich maintains, it is too late to appeal the property division in the decree. Although Smith challenged the DRO under CR 60(b) below (he does not discuss this basis for his challenge on appeal), he did not challenge the decree itself under this rule. A property settlement agreement incorporated into a dissolution decree that was not appealed cannot be later modified unless the court finds the existence of conditions that justify the reopening of a judgment. Byrne v. Ackerlund, 108 Wash.2d 445, 453, 739 P.2d 1138 (1987); In re Marriage of Knutson, 114 Wash.App. 866, 871-72, 60 P.3d 681 (2003) (quoting RCW 26.09.170(1)). Smith does not seek to reopen the judgment but argues only that the DRO misinterprets the language of the dissolution decree. Consequently, this appeal challenges the DRO and not the decree.

Interpretation of Decree in DRO...