Tupper v. Tupper

• Decision Date: 29 December 2020
• Docket Number: No. 53340-5-II
• Citation: Tupper v. Tupper, 15 Wash.App.2d 796, 478 P.3d 1132 (Wash. App. 2020)
• Court: Washington Court of Appeals
• Parties: In re the Marriage of: Donna Lynne TUPPER (nka: Donna Lynne Hagar), Respondent, v. Michael Lee TUPPER, Appellant.

15 Wash.App.2d 796

478 P.3d 1132

In re the Marriage of: Donna Lynne TUPPER (nka: Donna Lynne Hagar), Respondent,

v.Michael Lee TUPPER, Appellant.

No. 53340-5-II

Court of Appeals of Washington, Division 2.

Filed December 29, 2020

Rainer Armin Frank, McKinley Irvin PLLC, 1201 Pacific Ave.Ste. 2000, Tacoma, WA, 98402-4314, for Appellant.

Stephen Andrew Burnham, Campbell Barnett PLLC, Barbara J. Kastama, Attorney at Law, 317 S Meridian, Puyallup, WA, 98371-5913, for Respondent.

PUBLISHED OPINION

Melnick, J. ¶1 On September 21, 2006, Donna Tupper(now known as Hagar¹ ) and Michael Tupper agreed to a decree of dissolution of their marriage.As relevant here, the decree awarded 50 percent of Tupper's Social Security benefits, once received, to Hagar.In 2018, after Hagar moved to enforce that provision of the decree, the court granted the motion.Tupper appeals, arguing that the division of his Social Security benefits is prohibited by both state and federal law, and it is void due to federal preemption of the division of Social Security benefits.Because, based on the Supremacy Clause, federal preemption principles, and the Social Security Act, the court had no authority to enter such an order, the order is void.However, we disagree with Tupper's proposed remedy and instead remand the case to the trial court to reconsider the entire property division.

FACTS

¶2 On September 21, 2006, Tupper and Hagar dissolved their marriage.The court entered a decree of dissolution, and its findings of fact and conclusions of law incorporated a dissolution agreement reached by the parties after mediation.Hagar's lawyer drafted the decree.Tupper was a self-represented litigant.

¶3 As part of the decree, the court ordered Tupper to pay Hagar 50 percent of his Social Security benefits, including disability benefits.The payments were to commence upon Tupper either retiring or collecting the benefits because of a disability.The court did not designate the nature of the award as community property, separate property, maintenance, or anything else.The court never mentioned Social Security benefits in its findings of fact or conclusions of law.

¶4 In 2016, Tupper retired and began collecting Social Security benefits.In October 2018, Hagar filed a motion to show cause for enforcement of the decree.She had received none of Tupper's Social Security payments.In relevant part, Hagar wanted Tupper to pay her 50 percent of his Social Security benefits.

¶5 In February 2019, a superior court commissioner ordered Tupper to fully comply with the decree.Tupper moved for revision of the commissioner's order, arguing that the court lacked the authority to award Social Security benefits, and that the award was void due to a prohibition on dividing such benefits.A superior court judge denied revision.Tupper appeals.

ANALYSIS

I.DIVISION OF SOCIAL SECURITY BENEFITS

A.Legal Principles

¶6 The question of whether the trial court had the authority to divide Tupper's Social Security benefit is a question of law, which we review de novo.Roats v. Blakely Island Maint. Comm'n, Inc ., 169 Wash. App. 263, 273, 279 P.3d 943(2012).Once a judge rules on a motion for revision, any appeal is from the judge's decision, not the commissioner's.State v. Ramer , 151 Wash.2d 106, 113, 86 P.3d 132(2004).

¶7 The Social Security Act² prohibits a beneficiary from transferring or assigning his or her benefits to another.42 USC § 407(a).³It also forbids the use of legal processes to reach such benefits.42 USC § 407(a).The prohibitions exclude payments or transfers "in compliance with any community property settlement, equitable distribution of property, or other division of property between spouses or former spouses."42 USC § 659(i)(3)(B)(ii).

¶8 A court making a distribution of property in a dissolution proceeding may consider that a party will receive Social Security benefits; however, the benefits themselves are not divisible.In re Marriage of Zahm , 138 Wash.2d 213, 219, 978 P.2d 498(1999);In re Marriage of Rockwell , 141 Wash. App. 235, 244, 170 P.3d 572(2007).State courts are preempted by federal law from distributing or transferring Social Security benefits in a dissolution proceeding.42 USC § 659(i)(3)(B)(ii);see alsoGoodwin v. Bacon , 127 Wash.2d 50, 896 P.2d 673(1995).

¶9 Whether a judgment is void is a question of law we review de novo.Castellon v. Rodriguez , 4 Wash. App. 2d 8, 14, 418 P.3d 804(2018).There is a difference between a void judgment and a voidable judgment.Dike v. Dike , 75 Wash.2d 1, 8, 448 P.2d 490(1968).A judgment is void if the court lacks jurisdiction over the parties or the subject matter, or if it does not possess the inherent power to enter the particular order involved.

Bresolin v. Morris , 86 Wash.2d 241, 245, 543 P.2d 325(1975);seeRonald Wastewater Dist. v. Olympic View Water & Sewer Dist. , 196 Wash.2d 353, 474 P.3d 547, 552-53(2020).

B.Legal Background

¶10 In Hisquierdo v. Hisquierdo , 439 U.S. 572, 590, 99 S. Ct. 802, 59 L. Ed. 2d 1(1979), a case involving the federal Railroad Retirement Act, the Court held that the federal constitution's supremacy clause preempted California's community property laws.In its analysis, the Court noted the similarities between Railroad Retirement Act benefits and federal Social Security benefits, both of which are noncontractual and both of which have been granted protection from transfer by Congress.Hisquierdo , 439 U.S. at 575-76, 99 S.Ct. 802.The Court ultimately held that Railroad Retirement Act benefits were not susceptible to distribution as property in a dissolution proceeding.Hisquierdo , 439 U.S. at 590, 99 S.Ct. 802.

¶11 Twenty years later, Zahm applied Hisquierdo and concluded that "[S]ocial [S]ecurity benefits themselves are not subject to division in a marital property distribution case" and "federal statutes secure [S]ocial [S]ecurity benefits as the separate indivisible property of the spouse who earned them."Zahm , 138 Wash.2d at 219, 220, 978 P.2d 498.

¶12 In affirming the trial court, the court reasoned that no error existed because the trial court merely classified the Social Security benefits as community property, but did not actually distribute them.Zahm , 138 Wash.2d at 220-21, 978 P.2d 498.Zahm concluded that, when determining the parties’ economic positions at the time of dissolution, " ‘[a]trial court could not properly evaluate the economic circumstances of the spouses unless it could also consider the amount of [S]ocial [S]ecurity benefits currently received.’ "138 Wash.2d at 223, 978 P.2d 498(quotingIn re Marriage of Zahm , 91 Wash. App. 78, 85, 955 P.2d 412(1998), aff‘d byZahm , 138 Wash.2d 213, 978 P.2d 498 ).

¶13 In Rockwell , 141 Wash. App. at 245, 170 P.3d 572, we followed Zahm and affirmed the indivisibility of Social Security benefits.

In Rockwell , one party was not entitled to draw Social Security benefits because of the structuring of a federal pension.The federal pension was considered community property; the other party's Social Security benefits were not.The trial court compensated for the inequity by treating a portion of the federal pension as if it were Social Security benefits.Rockwell , 141 Wash. App. at 245, 170 P.3d 572.However, the court did not add any Social Security benefits to either parties’ "column" when it divided the property.Rockwell , 141 Wash. App. at 245, 170 P.3d 572.This treatment allowed the trial court to avoid valuing Social Security benefits and offsetting those benefits against other property, or dividing one party's Social Security benefits, both of which would have been error.Rockwell , 141 Wash. App. at 245, 170 P.3d 572.

¶14 A similar, but not identical issue, arose in Howell v. Howell , ––– U.S. ––––, 137 S. Ct. 1400, 197 L. Ed. 2d 781(2017).Howell concerned the division of military disability benefits as property in a divorce.137 S. Ct. at 1405-06.The parties in Howell divorced while the husband was still actively serving in the military.In accordance with the Uniformed Services Former Spouse Protection Act (USFSPA), which allows states to divide "disposable retired pay" in divorce proceedings, the parties split his military retirement pay in half.10 U.S.C. § 1408(c);Howell , 137 S. Ct. at 1404.Some years later, the wife's military retirement pay benefits were reduced due to the husband's decision to waive military retirement pay to received disability benefits.Howell , 137 S. Ct. at 1404.

¶15 Relying on the USFSPA and other precedent, the Arizona Supreme Court affirmed a trial court's decision ordering the husband to indemnify the wife for her vested rights in the military retirement pay.In re Marriage of Howell , 238 Ariz. 407, 361 P.3d 936, 938(2015), reversed byHowell , 137 S. Ct. 1400.It reasoned that while a trial court could not divide military retirement pay that a military member has already waived to obtain disability benefits, it should be able to require reimbursement for a post-decree reduction.Howell , 238 Ariz. at 409, 361 P.3d 936.The United States Supreme Court reversed, holding that "federal law completely pre-empts the States from treating waived military retirement pay as divisible community property."Howell,137 S. Ct. at 1405.Accordingly, under Howell , state courts may now divide military retirement pay only to the extent that it qualifies as disposable retired pay, as defined in 10 U.S.C. § 1408(a)(4)(A), and may not enter orders that "displace the federal rule and stand as an obstacle to the accomplishment and execution of the purposes and objectives of Congress."137 S. Ct. at 1406.

1.The Court Erred in Dividing Tupper's Social Security Benefits

¶16 Tupper argues that the trial court's order violated 42 U.S.C. § 407(a).Hagar makes several arguments in response.First, Hagar argues that the division was not improper because it did not explicitly value the Social Security benefits or make "a direct transfer, assignment or division of [Tup...