Knies v. Knies

• Decision Date: 28 June 1999
• Docket Number: 42131-0-I,Nos. 41813-1-,s. 41813-1-
• Citation: 96 Wn.App. 243,979 P.2d 482
• Court: Washington Court of Appeals
• Parties: In re the Marriage of Kenneth A. KNIES, Appellant/Cross Respondent, v. Patricia K. KNIES, Respondent/Cross Appellant.

Page 482

96 Wn.App. 243

979 P.2d 482

In re the Marriage of Kenneth A. KNIES, Appellant/Cross Respondent, v. Patricia K. KNIES, Respondent/Cross Appellant.

Nos. 41813-1-I, 42131-0-I.

Court of Appeals of Washington,

Division 1.

June 28, 1999.

Catherine Wright Smith, Edwards, Sieh, Smith & Goodfriend, Seattle, John Leonard Erickson, Law Offices of John Leonard Erickson, Bellingham, for Appellant.

Elizabeth Ann Helm, Northwest Women's Law Center, Seattle, for Respondent.

KENNEDY, C.J.

In a 1990 decree dissolving their 23-year marriage, Patricia Knies received 50 percent of her husband's pension with the Washington State Patrol, but no portion of any future disability payments. In 1996, 6 days before he was eligible to retire, Kenneth Knies was granted job-related disability status. Ms. Knies moved for an order directing Mr. Knies to pay a portion of his disability payments to her. The trial court concluded that Mr. Knies' disability payments were, in effect, a retirement benefit and subject to division in accordance with the original decree. We affirm the court's decision to grant Ms. Knies a portion of the disability payments commencing as of the date of trial. We also affirm the award of attorney fees at trial and grant fees to Ms. Knies for defending the direct appeal but not for prosecuting the cross-appeal.

Facts

Patricia and Ken Knies married in 1967 and divorced in 1990. In accord with the parties' property settlement agreement, the dissolution decree awarded Ms. Knies 50% of the community interest in Mr. Knies' pension Mr. Knies joined the Patrol in 1970. For most of his career, Mr. Knies had knee problems, which resulted in total replacement of his right knee. In October 1995, Mr. Knies requested job-related disability status because of the arthritic condition in his knees. Patrol Chief Annette Sandberg authorized non-job-related disability retirement, to become effective March 14, 1996. Mr. Knies appealed, and a review board recommended that Mr. Knies be placed on job-related disability. As a result, Chief Sandberg changed Mr. Knies's status from non-job-related disability to job-related disability and established the effective date as March 7, 1996. If Mr. Knies had not been placed in job-related disability status, he would have been eligible to retire from the Patrol after 25 years of service on March 14, 1996. ²

with the Washington State Patrol (Patrol). Mr. Knies was to retain disability payments. ¹

A member of the Patrol may retire after 25 years of service or at age 55, regardless of the number of years of service. All members, however, must retire by age 60. No mechanism exists to automatically transfer Mr. Knies from disability status to retirement status. Therefore, he will not retire from the Patrol unless he affirmatively decides to return to active duty for six (6) days to complete his 25 years of service. Even if Mr. Knies were 55 years old and eligible to retire, he would not be required to do so, but could remain on disability indefinitely until death. When asked in his deposition whether he would be willing to return to work for one week to buy up the service retirement, Mr. Knies said, "No."

The job-related disability income that Mr. Knies receives is non-taxable, and he is entitled to lifetime medical and dental benefits while on job-related disability status. Retirement benefits, in contrast, are taxable, and retirees receive less medical and dental coverage than individuals receiving job-related disability payments.

Although Mr. Knies could be recalled to active duty status, Chief Sandberg testified that she would not require any trooper on disability, including Mr. Knies, to return to active service, due to union pressures.

A trooper on job-related disability status is permitted to earn income from outside sources with no reduction in disability pay. While on job-related disability, Mr. Knies was employed as a civilian with the Department of Corrections.

In November 1996, 6 years after the parties dissolved their marriage, Ms. Knies moved for an order directing Mr. Knies to pay a portion of his disability payments to her. After an evidentiary hearing on October 23, 1997, the trial court concluded that Mr. Knies's disability payments were, in effect, a retirement benefit, and thus subject to division in accordance with the parties' 1990 dissolution decree. The trial court's oral decision further explained that the "crown jewel" at the time of the divorce was Mr. Knies's pension, and it was divided in half accordingly. The court found that the remainder of the language in the decree, including the provision addressing disability payments, was boilerplate. The court concluded that "common sense" and "the law" dictated that the "disability be designated a pension payment."

The trial court ordered that Ms. Knies receive $664.02 per month from Mr. Knies' disability payments, commencing as of the date of trial, October 23, 1997. This figure was calculated based on what Ms. Knies would have received had he retired rather than become disabled. The court declined to order payments retroactive to March 14, 1996, however, refusing to speculate as to whether Mr. Knies actually would have retired after 25 years, but basing the decision on testimony that most troopers, on average, retire after 26 to 28 years of service. Finally, the court awarded Ms. Knies $4,500 in attorney fees.

Mr. Knies appeals the trial court's decision, arguing that it improperly relied on CR 60(b)(11) to modify the dissolution decree, and seeking a reversal of the trial court's award of attorney fees. Ms. Knies cross appeals, seeking a reversal of the trial court's decision ordering payments to begin as of the date of trial rather than as of March 14, 1996.

DISCUSSION

A. CR 60(b)(11)

Mr. Knies contends the court did not have the authority under CR 60(b)(11) to modify the property award 6 years after entry of the divorce decree. RCW 26.09.170(1) provides in pertinent part that "[t]he provisions as to property disposition may not be revoked or modified, unless the court finds the existence of conditions that justify the reopening of a judgment under the laws of this state." The decision to vacate or reopen a judgment under CR 60(b) will not be overturned on appeal unless it plainly appears that the trial court has abused its discretion. In re Marriage of Tang, 57 Wash.App. 648, 653, 789 P.2d 118 (1990). Discretion is abused where it is exercised on untenable grounds or for untenable reasons. Id.

Rule 60(b)(11) provides:

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: ... (11) Any other reason justifying relief from the operation of the judgment.

The motion shall be made within a reasonable time[.]

This subsection is limited to situations involving "extraordinary circumstances." "The circumstances must relate to 'irregularities which are extraneous to the action of the court or go to the question of the regularity of its proceedings.' " In re Marriage of Flannagan, 42 Wash.App. 214, 221, 709 P.2d 1247 (1985) (quoting State v. Keller, 32 Wash.App. 135, 141, 647 P.2d 35 (1982)).

In In re Marriage of Jennings, 91 Wash.App. 543, 546-49, 958 P.2d 358 (1998), review granted, 137 Wash.2d 1007, 978 P.2d 1097 (1999), the court summarized the limited nature of post-decree challenges to property settlements, concluding that only three Washington cases had successfully reopened property settlements under CR 60(b)(11). Each of these cases involved the same "extraordinary circumstance," the retroactive application of the Uniform Services Former Spouses' Protection Act (USFSPA), which superseded a U.S. Supreme Court decision ³ holding that state courts were prohibited from treating military pensions as community property.

Last year, we added a fourth decision unrelated to the USFSPA line of cases: In re Marriage of Thurston, 92 Wash.App. 494, 963 P.2d 947 (1998). In Thurston, the former wife argued that her former husband had not complied with a condition of the dissolution decree requiring him to transfer two units of a limited partnership to her. Nineteen months after entry of the decree, the trial court vacated the property disposition under CR 60(b)(11), concluding that the nonoccurrence of a material condition of the dissolution decree constituted an extraordinary circumstance warranting relief. We affirmed, based on a colloquy between the court and counsel at the time of the original decree establishing that the conveyance of property to the wife was an "express condition" of the parties' property settlement agreement. Id. at 503, 963 P.2d 947.

Other parties who have attempted post-decree vacation of property settlements generally have been denied relief. See In re Marriage of Irwin, 64 Wash.App. 38, 64, 822 P.2d 797 (1992) (changed financial circumstances is insufficient reason to allow 60(b)(11) motion, but because husband merely requested a delay in payment due to emergency financial difficulties, any error in granting the motion was harmless); Tang, 57 Wash.App. at 654-56, 789 P.2d 118 (fact that parties' settlement agreement did not list, value, or characterize property did not constitute "unusual situation"); In re Marriage of Burkey, 36 Wash.App. 487, 488-91, 675 P.2d 619 (1984) (inadequate representation did not constitute "unusual circumstances"). In Jennings, the parties' dissolution decree awarded the wife one-half of her husband's military retirement, but none of the military disability pay that he was receiving at the time of the decree. Due to his worsening disability, the husband's retirement pay was reduced, post-decree, resulting in a decrease in the wife's portion of the retirement pay from $813.50 to $136 per month. The Jennings majority determined that this reduction did not constitute an "extraordinary circumstance" because only one asset declined substantially...