In re Weiser

• Decision Date: 27 October 2020
• Docket Number: No. 51615-2-II consolidated with No. 53581-5-II,51615-2-II consolidated with No. 53581-5-II
• Parties: IN RE the MARRIAGE OF: Andrew Otto WEISER, Appellant/Cross-Respondent, and Michelle Renee Weiser, Respondent/Cross-Appellant.
• Court: Washington Court of Appeals

14 Wash.App.2d 884

475 P.3d 237

IN RE the MARRIAGE OF: Andrew Otto WEISER, Appellant/Cross-Respondent, and Michelle Renee Weiser, Respondent/Cross-Appellant.

No. 51615-2-II consolidated with No. 53581-5-II

Court of Appeals of Washington, Division 2.

Filed October 27, 2020

Kathleen Ann Forrest, Attorney at Law, 11261 W Red Hawk Dr., Nampa, ID, 83686-8051, Patrick William Rawnsley, PWR LAW, PLLC, 1411 State Ave. Ne Ste. 102, Olympia, WA, 98506-4467, for Appellant/Cross-Respondent.

Charles E. Szurszewski, Connolly Tacon & Meserve, 201 5th Ave. Sw Ste. 301, Olympia, WA, 98501-1063, Kevin Hochhalter, Olympic Appeals PLLC, Po Box 55, Adna, WA, 98522-0055, for Respondent/Cross-Appellant.

PUBLISHED OPINION

Cruser, J. ¶1 Andrew¹ Weiser appeals a superior court order granting his former wife Michelle Weiser's motion to enforce the property distribution agreement (Agreement) incorporated into the couple's dissolution decree and awarding Michelle attorney fees based on need and ability to pay. The Agreement awarded Michelle a portion of Andrew's military retirement. Post-dissolution, Andrew elected to receive disability in lieu of retirement and unilaterally reduced the amount of military retirement pay he was paying Michelle despite a clause in the Agreement stating, "In the event the husband's military retirement benefit shall be reduced or offset by disability pay, such a reduction shall not reduce the amount the wife is entitled to receive each month under the terms of this order." Clerk's Papers (CP) at 8.

¶2 Andrew argues that the superior court erred in enforcing the Agreement because the Uniform Services Former Spouses’ Protection Act² (USFSPA), and Howell v. Howell , ––– U.S. ––––, 137 S. Ct. 1400, 197 L. Ed. 2d 781 (2017), prohibit distribution of military disability pay in lieu of retirement or indemnification for reductions in the amount of retirement caused by the election of disability in lieu of retirement. He also challenges the superior court's interpretation of the terms of the Agreement.

¶3 Michelle cross-appeals a superior court commissioner's order denying the CR 60(b)(11) motion that she filed during the pendency of this appeal. In this motion, Michelle sought to vacate portions of the dissolution decree related to the disability waiver, to establish nonmodifiable maintenance, and to address issues related to Andrew's alleged failure to complete a survivor beneficiary designation required by the Agreement.

¶4 We hold that under the doctrine of res judicata Andrew cannot, through a response to a motion to enforce an agreement that he had not followed, reopen the Agreement as adopted in the dissolution decree and challenge the validity of that decree. We further reject Andrew's challenge to the superior court's interpretation of the Agreement. Accordingly, we affirm the superior court's order enforcing the decree and the Agreement.

¶5 In light of this decision, we also affirm the denial of Michelle's CR 60 motion to vacate the dissolution decree. But because the superior court commissioner never addressed the survivor beneficiary designation issue that Michelle also raised in her CR 60 motion, we remand to the commissioner for consideration of that remaining issue.

FACTS

I. DISSOLUTION AND NEGOTIATED PROPERTY DISTRIBUTION AGREEMENT

¶6 Andrew and Michelle married in May 1992, and separated in March 2010. Andrew retired from the United States Army on October 1, 2010, after 20 years of service.

¶7 The marriage was dissolved in February 2011. The decree of dissolution divided Andrew and Michelle's assets and liabilities as set out in their negotiated Agreement, which the superior court incorporated by reference into the dissolution decree. The decree also awarded Michelle maintenance for 42 months.

¶8 In the section addressing the property awarded to Andrew, the Agreement provided, in part,

• Wife will receive 50% of the community property portion of the military retirement account in the husband's name.^[3] The community property portion shall be defined as the contributions and interest thereon from the date of marriage until the date of separation.

• At retirement, husband shall elect the survivor benefit plan for his military retirement and name the wife as a beneficiary. Wife shall receive benefits at a level that is no less than the amount of monthly retirement she is entitled to receive under the terms of this order.

• In the event the husband's military retirement benefit shall be reduced or offset by disability pay, such a reduction shall not reduce the amount the wife is entitled to receive each month under the terms of this order .

CP at 8 (emphasis added). In addition, a separate section of the Agreement awarded Michelle various property, including, "[o]ne-half of the community property portion of the military retirement account in the husband's name." Id. at 9.

II. DISABILITY PAY AND HOWELL

¶9 Andrew began receiving military retirement pay in October 2010. Andrew later asserted that he initially paid Michelle $581.01 a month, but he eventually determined that he should have paid her more.

¶10 According to Andrew, his military retirement pay was reduced in August 2012, after he obtained a 30 percent disability rating and began receiving disability pay in lieu of a portion of his retirement. Starting that same month, Andrew began paying Michelle one half of the remaining military retirement pay, rather than one half of the original military retirement pay.⁴

¶11 In May 2017, more than six years after the superior court entered the original dissolution decree and almost five years after Andrew started receiving his disability in lieu of retirement, the United States Supreme Court issued Howell . In Howell , the Court held that states are prohibited from increasing the amount a divorced spouse receives each month from a veteran's retirement pay in order to " ‘reimburse’ " or "indemnify the divorced spouse for the loss caused by the veteran's [disability] waiver." 137 S. Ct. at 1402, 1406.

III. MOTION TO ENFORCE AGREEMENT

¶12 On September 20, 2017, more than five years after Andrew started to receive disability pay and unilaterally reduced his payments to Michelle, Michelle moved to enforce the Agreement and to recover the portion of Andrew's military retirement that she believed she was due under the Agreement. Michelle argued that the Agreement was an unambiguous contract requiring Andrew to pay a monthly amount that could not be reduced by his decision to receive disability in lieu of retirement and that the superior court should enforce this unambiguous agreement.

¶13 Andrew objected to Michelle's motion to enforce the Agreement, arguing that under the USFSPA and Howell , he could not be ordered to indemnify Michelle for any reduction in retirement pay created by his disability waiver. He also asserted that when they had negotiated the Agreement, they had considered the fact he might receive disability pay and that Michelle would not be awarded any of his disability income. He stated that they had addressed this contingency by awarding Michelle 100 percent interest in the house.

¶14 Andrew also argued that because the Agreement provided for only three years of spousal maintenance, Michelle could not claim additional maintenance or compensatory maintenance. He admitted, however, that regardless of his disability waiver, he had underpaid Michelle due to a calculation error.

¶15 Notably, Andrew raised these arguments in his response to Michelle's motion to enforce the Agreement that was adopted by the decree. He did not move under CR 60 to modify or otherwise reopen the decree.

¶16 Michelle replied that she and Andrew had agreed "to share the retirement, including any amount converted to [disability income]." CP at 73 (emphasis added). She further asserted that they were both aware that there could be a reduction due to disability and that they had "agreed that such a conversion would not reduce [Michelle's] portion." Id.

¶17 After hearing argument,⁵ a superior court commissioner orally ruled that the court would enforce the decree because the "clear and unambiguous language" of the Agreement demonstrated that "the parties intended for [Michelle] to receive the amounts indicated." 1 Report of Proceedings (RP) at 9. The commissioner directed the parties to reach an agreement on the amounts owed. The commissioner also granted attorney fees to Michelle based on her need and Andrew's ability to pay.

¶18 The commissioner subsequently entered a "Military Retirement Order" ordering Andrew continue to pay Michelle directly "45% of the marital portion of his retirement pay until such time as the payments are made directly by the military" and "to continue to name [Michelle] as the irrevocable beneficiary of his survivor benefit plan" or to reinstate her as the irrevocable beneficiary. CP at 637 (sealed document) (emphasis added). Notably, the Military Retirement Order required Andrew to continue to pay 45 percent of the retirement pay to Michelle and did not require the direct payment of any portion of Andrew's disability pay.

¶19 The Military Retirement Order also provided that Andrew "shall not take any further action which would defeat, reduce or limit [Michelle's] right to receive her share of [Andrew's] military pension benefits, including merging retired pay with other pensions or waiving any portion of retired pay in order to receive disability pay." Id. at 639 (sealed document). It provided that in the event Andrew breached this provision, he "shall indemnify and pay directly to [Michelle] any sums reduced by such action." Id. It further provided that the court "retain[ed] jurisdiction" to award Michelle "permanent non-modifiable maintenance" to replace the reduction in retirement earnings. Id. The order also stated that it was intended to "qualify under the [USFSPA], 10 U.S.C. § 1408" and that "[a]ll provisions shall be interpreted to make the order qualify." Id.

¶20 It appears that the commissioner also issued a...