Andrew Weiser, Appellant/cross v. Michelle Weiser, Respondent/cross ( 2020 )

Filed
Washington State
Court of Appeals
Division Two
October 27, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In re the Marriage of: No. 51615-2-II
(consolidated with No. 53581-5-II)
ANDREW OTTO WEISER,
Appellant/Cross-Respondent,
and
MICHELLE RENEE WEISER, PUBLISHED OPINION
Respondent/Cross-Appellant.
CRUSER, J. - 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.
1
Because Andrew and Michelle Weiser have the same last name, we refer to them by their first
names for clarity.
Consolidated No. 51615-2-II / 53581-5-II
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.
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.
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.
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.
2
10 U.S.C. §1408.
2
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FACTS
I. DISSOLUTION AND NEGOTIATED PROPERTY DISTRIBUTION AGREEMENT
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.
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.
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.
3
Andrew and Michelle were married for 18 years of Andrew’s 20 years of service, so the
community property portion of the military retirement account was 90 percent. Thus, 50 percent
of the community property portion is 45 percent.
3
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II. DISABILITY PAY AND HOWELL
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.
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
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
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
4
It is unclear from the record exactly how much Andrew should have paid Michelle before and
after waiving his retirement pay because he admits that he underpaid Michelle.
4
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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.
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.
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.
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.
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.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
5
There was no testimony presented at this hearing.
5
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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.
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.
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.It appears that the commissioner also issued a separate order that included a $21,000
judgment in Michelle’s favor to compensate her for “the back debt” or “underpayment” and to pay
6
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$5,000 of Michelle’s attorney fees.6 See id. at 89. The parties apparently negotiated the amount of
the “underpayment” and the attorney fees, but the record on appeal does not show what portion of
this judgment, if any, related to Andrew’s reduction in retirement pay. Id.IV. ANDREW’S MOTION FOR REVISION
Andrew moved to revise the commissioner’s decision, including the $21,000 judgment. At
the hearing on the motion for revision, Andrew argued that the language in the Agreement was
“indemnification or reimbursement language prohibited under [Mansell v. Mansell, 490 U.S. 581,
587, 109 S. Ct. 2023, 104 L. Ed. 2d 675 (1989)] and [the] Howell case.” 2 RP at 14. In an oral
ruling, the superior court refused to revise the commissioner’s ruling, concluding that Howell did
not apply because the parties had “both negotiated [the] agreement.” Id. at 25.
The superior court also refused to revise the commissioner’s attorney fees award and
awarded additional attorney fees related to the motion to revise to Michelle based on her need and
Andrew’s ability to pay and the “significant disparity in income between the two parties.” Id. The
superior court issued a judgment and order denying the motion for revision.
The superior court’s March 2, 2018 judgment and order denying the motion for revision
included the following written findings of fact:
(a) The parties reached an agreement to divide all of their property, pay
maintenance, and pay child support.
(b) The terms of their agreement were included in an attachment to the decree
of dissolution and were adopted by the court.
(c) By the terms of the agreement, the parties had anticipated that the husband
would retire from the military and could, at some point in his life, waive a
portion of his military retired pay and convert it to VA benefits.
6
This order is not part of the appellate record.
7
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(d) By the terms of their agreement, the husband agreed to reimburse the wife
for any sum that she lost due to the waiver. He failed to do so.
(e) The Respondent filed a Motion for Judgment, Entry of Order Dividing
Military Pension, and for Attorney Fees.
(f) The Petitioner did not transfer to Respondent 45% of his disposable retired
pay plus 45% of any future VA waiver amount.
(g) The agreement of the parties adopted by the court in the decree is
unambiguous. The court will not go outside the four corners.
....
(j) The agreement of the parties does not require the military to take any
actions, including payment of any funds, in violation of federal laws and
regulations.
CP at 96-97 (italics omitted) (emphasis added).
Andrew appealed the March 2, 2018 judgment and order. In his opening appellate brief,
Andrew asserted that Michelle should have sought relief through a CR 60 motion rather than a
motion to enforce the contract.
V. MICHELLE’S CR 60(B)(11) MOTION AND CROSS APPEAL
Apparently in response to Andrew’s opening appellate brief, Michelle filed a CR 60(b)(11)
motion asking the court to modify or clarify the dissolution decree. 7 Michelle also asserted that
Andrew had failed to designate her as the beneficiary of the military retirement survivor benefit.
Michelle asked the court to “vacate the provisions of the decree of dissolution regarding
maintenance, attorney fees, and any reference to the requirement that Andrew reimburse
[Michelle] for any VA waiver amount” and to award her monthly, nonmodifiable lifetime
maintenance to compensate her for her share of Andrew’s retirement and his failure to designate
7
CR 60(b) provides, in part, “On motion and upon such terms as are just, the court may relieve a
party or the party’s 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.”
8
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her as the beneficiary of the survivor benefit. Id. at 534. Alternatively, she argued that if Andrew
were to designate her as beneficiary of the survivor benefit, she should receive a slightly lower
monthly lifetime nonmodifiable maintenance. She also requested attorney fees.
The commissioner heard argument on Michelle’s CR 60 motion.8 Acknowledging that
Andrew’s pending appeal prevented her oral ruling from having any effect unless this court gave
her permission to enter the order, the commissioner orally ruled that there was no basis to vacate
the dissolution decree because the Agreement had been incorporated into the dissolution decree,
the Agreement was “detailed and specific,” and the “intent” of the agreement was “clear.” RP
(Apr. 4, 2019) at 23. The commissioner’s oral ruling did not address the survivor benefit
designation issue.
After we granted permission, the commissioner entered a written order denying Michelle’s
CR 60 motion and both parties’ requests for attorney fees. The written order did not explain any
of the commissioner’s reasoning or mention the survivor benefit beneficiary designation.
Michelle appealed the order denying her CR 60 motion. We consolidated Michelle’s appeal
with Andrew’s appeal and advised Michelle that her appeal would be considered as a cross appeal.
At our request, the parties provided supplemental briefing addressing whether res judicata
prevents the reopening of the decree of dissolution or the settlement agreement in this case.
8
No testimony was presented at this hearing.
9
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ANALYSIS
I. DEVELOPMENT OF THE LAW
A. FEDERAL LAW AND RELATED CALIFORNIA CASE LAW
1. MCCARTY AND THE USFSPA
In 1981, the United States Supreme Court held in McCarty v. McCarty, that under the
Supremacy Clause of the United States Constitution9 federal law precluded state courts from
dividing military retirement pay under state community property or equitable distribution laws.
453 U.S. 210, 211, 235, 101 S. Ct. 2728, 69 L. Ed. 2d 589 (1981). In 1982, Congress enacted the
USFSPA in response to McCarty. Former 10 U.S.C. 1408 (c)(1) (1982); Howell, 137 S. Ct. at
1403.
The USFSPA allowed state courts to consider “disposable retired . . . pay” as community
or marital property. Former 10 U.S.C. 1408 (c)(1); Howell, 137 S. Ct. at 1403. The USFSPA
defined “‘disposable retired . . . pay,’” as “the total monthly retired . . . pay to which a member is
entitled (other than the retired pay of a member retired for disability under chapter 61 of this
title).” Former 10 U.S.C. 1408(a)(4) (emphasis added).10
2. MANSELL
In 1989, the Supreme Court issued Mansell, which addressed the definition of “disposable
retired pay” under the USFSPA. 490 U.S. at 589. In Mansell, the parties entered into a property
settlement as part of their divorce decree. Id. at 585-86. The property settlement provided that the
9
The Supremacy Clause establishes that the Constitution and all federal laws enacted under the
Constitution are the “supreme Law of the Land.” U.S. Const. art. VI, cl. 2.
10
Recent amendments to the statute renumbered the waiver provision. It is now codified at 10
U.S.C. §1408(a)(4)(A)(ii).
10
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husband would pay the wife 50 percent of his total military retirement pay, including the portion
of his retirement pay that he had waived in order to receive disability benefits. Id.Four years later, the husband moved to modify the divorce decree to remove the provision
requiring him to split his total retirement pay with the wife. Id. at 586. The Supreme Court held
that since the USFSPA expressly excluded disability compensation from the definition of
disposable retired pay, any portion of military retirement pay that was waived to obtain disability
benefits could not be treated as community or marital property and must, instead, be treated as
separate property. Id. at 594-95.
The Supreme Court did not discuss possible remedies available to the wife; it merely
reversed the judgment and remanded the matter “for further proceedings not inconsistent with [the
Court’s] opinion.” Id. at 594. But the Supreme Court included the following footnote:
In a supplemental brief, Mrs. Mansell argues that the doctrine of res judicata
should have prevented this pre-McCarty property settlement from being reopened.
The California Court of Appeal, however, decided that it was appropriate, under
California law, to reopen the settlement and reach the federal question. Whether the
doctrine of res judicata, as applied in California, should have barred the reopening
of pre-McCarty settlements is a matter of state law over which we have no
jurisdiction. The federal question is therefore properly before us.
Id. at 586 n.5 (internal citations omitted) (emphasis added). This footnote establishes that res
judicata can prevent the reopening of the property settlement and that res judicata is a matter of
state law.
On remand to the state court, the California Court of Appeal affirmed the trial court’s denial
of the motion to vacate and modify the judgment. In re Marriage of Mansell, 217 Cal. App. 3d
219, 236, 265 Cal. Rptr. 227 (1989). The court addressed the husband’s argument that the judgment
at issue was void for lack of subject matter jurisdiction and held that although McCarty preempted
11
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state community property law, it did not deprive the trial court of subject matter jurisdiction. Id. at
227, 229, 235.
The court discussed whether the decree was in excess of the superior court’s jurisdiction
and, therefore, should have been vacated or whether res judicata applied. Id. at 229, 234-35. It held
that “a judgment entered contrary to substantive law does not fall to the level of being in excess of
the trial court’s jurisdiction” and that there was no ground to reopen the settlement. Id. at 229.
The court clarified that, despite the Supreme Court’s assertion that the California Court of
Appeal had determined that it was appropriate under California law to reopen the settlement and
reach the federal question, this was not, in fact, what had occurred. Id. at 224-25. The court stated
that it had not reopened the judgment but that it had merely “addressed the federal question only
to demonstrate there was no basis for reopening the settlement.” Id. at 225, 235. The court further
stated that the determination of whether the court could reopen the settlement “was one of state
law, although our rationale for reaching it involved resolution of a federal question.” Id. at 225,
235.
Ultimately, the California Court of Appeal refused to reopen the judgment. Id. at 235. Thus,
the court held that res judicata barred relief for the husband. Notably, the United States Supreme
Court denied certiorari of that decision. Mansell v. Mansell, 498 U.S. 806 (1990).
3. HOWELL
Over time, it became apparent that there was a split of state-law authority regarding
whether the Supreme Court’s Mansell decision and the USFSPA allowed the veteran spouse to
indemnify the divorced spouse for the loss of the divorced spouse’s portion of the veteran’s
retirement pay caused by the receipt of service-related disability benefits. Howell, 137 S. Ct. at
12
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1404-05. In 2017, 28 years after the Supreme Court issued Mansell, the Supreme Court resolved
the indemnification issue in Howell.
The Howells divorced in 1991, and the dissolution decree awarded the wife 50 percent of
the husband’s military pension, with no mention of any indemnification should the husband’s
military pension change post-dissolution. Id. at 1404. The husband began receiving military
retirement benefits in 1992. Id. Thirteen years later, the husband received a disability rating of 20
percent and elected to receive disability compensation in lieu of retirement, significantly reducing
the wife’s portion of the retirement benefits. Id.The wife sought enforcement of the original decree, and the trial court ordered the husband
to “‘reimburse’” the wife for the reduction in her share of his military retirement pay due to his
disability election. Id. (quoting In re Marriage of Howell, 238 Ariz. 407, 410, 361 P.3d 936, 939
(2015)). The husband appealed. Id.The Arizona Supreme Court affirmed the trial court, holding that the Supreme Court’s
decision in Mansell did not control the case because the husband “made his [disability] waiver
after, rather than before, the family court divided his military retirement pay.” Id. Noting that other
state courts had come to different conclusions on similar matters, the Supreme Court accepted
review. Id. at 1404-05.
The Supreme Court addressed whether “the State [can] subsequently increase, pro rata, the
amount the divorced spouse receives each month from the veteran’s retirement pay in order to
indemnify the divorced spouse for the loss caused by the veteran’s [disability] waiver.” Id. at 1402.
The Court held that because federal law pre-empts the states from treating waived military
retirement pay as divisible community property, state courts cannot order veterans to indemnify
13
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their divorced spouses for any reduction in the divorced spouse’s portion of the veteran’s
retirement pay caused by the veteran’s receipt of disability in lieu of retirement.11 Id. at 1402.
The Howell court further stated,
Neither can the State avoid [the Supreme Court’s decision in] Mansell by
describing the family court order as an order requiring [the husband] to “reimburse”
or to “indemnify” [the wife], rather than an order that divides property. The
difference is semantic and nothing more. The principal reason the state courts have
given for ordering reimbursement or indemnification is that they wish to restore the
amount previously awarded as community property, i.e., to restore that portion of
retirement pay lost due to the postdivorce waiver. And we note that here, the
amount of indemnification mirrors the waived retirement pay, dollar for dollar.
Regardless of their form, such reimbursement and indemnification orders displace
the federal rule and stand as an obstacle to the accomplishment and execution of
the purposes and objectives of Congress. All such orders are thus pre-empted.
Id. at 1406 (emphasis added).
Acknowledging the harsh effect that the inability to indemnify could have on the former
spouse, the Court stated,
We recognize, as we recognized in Mansell, the hardship that congressional
pre-emption can sometimes work on divorcing spouses. See 490 U.S., at 594, 109
S. Ct. 2023. But we note that a family court, when it first determines the value of a
family’s assets, remains free to take account of the contingency that some military
retirement pay might be waived, or, as the petitioner himself recognizes, take
account of reductions in value when it calculates or recalculates the need for spousal
11
The Court also commented that the wife’s “interest in the waivable portion” of the veteran’s
retirement pay could not be considered “‘vested’” because that interest was “at most, contingent”
since it was dependent on a subsequent condition, namely the husband’s possible waiver of the
retirement pay and the state court could not “‘vest’ that which (under governing federal law) they
lack the authority to give.” Howell, 137 S. Ct. at 1405-06. But the property agreement in Howell
did not include language similar to the language in the Weisers’ agreement, which stated that if
Andrew elected disability, any reduction “shall not reduce the amount the wife is entitled to receive
each month under the terms of th[e] order.” CP at 8. Thus, although Howell establishes that
Michelle did not have a vested interest in the waivable portion of Andrew’s benefits, Howell does
not address whether Michelle had a vested interest in the income stream guaranteed in the property
distribution agreement.
14
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support. See Rose v. Rose,[12] 481 U.S. 619, 630-634, and n. 6, 107 S .Ct. 2029, 95
L. Ed. 2d 599 (1987); 10 U.S.C. § 1408(e)(6).[13]
Id. at 1406.
The Court did not address whether Howell was retroactive or whether Howell negated the
footnote 5 in its Mansell decision.
B. RELATED WASHINGTON LAW
In 2001, after the Supreme Court’s Mansell decision but before Howell, we addressed the
division and distribution of a veteran’s disability pension in Perkins v. Perkins, 107 Wn. App. 313,
26 P.3d 989 (2001). Perkins was a direct appeal from the dissolution order. 107 Wn. App. at 317.
In Perkins, the trial court ordered the military spouse to pay the civilian spouse the same
amount as her lost share of his retired pay, as “permanent compensatory spousal maintenance.” Id.
at 317 (emphasis omitted). Foreshadowing Howell, we held that the Supreme Court’s Mansell
decision prohibited any order for “dollar-for-dollar” reimbursement of the lost retired pay, even if
it was labeled “‘maintenance.’” Id. at 324, 327.
12
Rose distinguishes the court’s ability to reach certain federal benefits when establishing spousal
and child support from considering such benefits for the purpose of community property divisions.
481 U.S. at 630-634, and n.6.
13
10 U.S.C § 1408(e)(6) provides:
Nothing in this section shall be construed to relieve a member of liability for the
payment of alimony, child support, or other payments required by a court order on
the grounds that payments made out of disposable retired pay under this section
have been made in the maximum amount permitted under paragraph (1) or
subparagraph (B) of paragraph (4). Any such unsatisfied obligation of a member
may be enforced by any means available under law other than the means provided
under this section in any case in which the maximum amount permitted under
paragraph (1) has been paid and under section 459 of the Social Security Act (42
U.S.C. 659) in any case in which the maximum amount permitted under
subparagraph (B) of paragraph (4) has been paid.
15
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But we further held that a “dissolution court . . . may consider a spouse’s entitlement to an
undivided veteran’s disability pension . . . as one factor relevant to an award of maintenance . . . ,
provided of course that [the court] follows the usual state-law rules.” Id. at 322-23 (emphasis
omitted) (footnotes omitted). In other words, “a trial court may award maintenance after
considering all relevant factors, of which a military disability pension may be one.” Id. at 327. We
“reverse[d] and vacate[d] the property, debt, and maintenance parts of the dissolution decree,”
affirmed the rest of the decree, and “remand[ed] for redistribution of property and debts, and for
reconsideration of maintenance.” Id.
II. ANDREW’S APPEAL
Andrew argues that under the Supreme Court’s Mansell and Howell decisions, and Perkins,
107 Wn. App. 322-23, the superior court erred when it granted Michelle’s motion to enforce and
ordered him to reimburse and indemnify Michelle for her share of the portion of his military
retirement pay that was reduced by his receipt of disability in lieu of retirement. He further argues
that the superior court erred when it concluded that he had agreed to reimburse Michelle for any
amount she lost due to the disability waiver. Michelle responds that Howell does not prohibit
indemnification because she was seeking to enforce a negotiated contractual agreement and
Howell applies only to property divisions imposed by the court.
At our request, the parties provided supplemental briefing addressing whether res judicata
prevents the reopening of the decree of dissolution or the settlement agreement in this case. We
hold that the res judicata issue is dispositive and that the superior court properly concluded that
the Agreement required Andrew to reimburse Michelle for any amount she lost due to the disability
16
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waiver. We further hold that the superior court did not err when it concluded that Andrew had
agreed to reimburse Michelle for any amount she lost due to the disability waiver.
A. RES JUDICATA
1. LEGAL PRINCIPLES
We review de novo a superior court order on a motion to enforce in which the superior
court has not taken any evidence. Kwiatkowski v. Drews, 142 Wn. App. 463, 479, 176 P.3d 510(2008). Additionally, “[w]hether res judicata bars an action is a question of law [this court]
review[s] de novo.” Ensley v. Pitcher, 152 Wn. App. 891, 899, 222 P.3d 99 (2009).
The doctrine of res judicata or claim preclusion ensures finality of
judgments. Marino Property Co. v. Port Comm’rs, 97 Wn.2d 307, 312, 644 P.2d
1181 (1982). Once a judgment is final, a court may reopen it only when specifically
authorized by statute or court rule. See Lejeune v. Clallam [County], 64 Wn. App.
257, 269, 823 P.2d 1144, review denied, 119 Wn.2d 1005, 832 P.2d 488 (1992).
CR 60 sets forth the general conditions under which a party may seek relief from
judgment. [Chapter] 26.09 [RCW], which governs dissolution actions, sets forth
additional grounds applying solely to such actions. See In re Marriage of Timmons,
94 Wn.2d 594, 597-99, 617 P.2d 1032 (1980).
In re Marriage of Shoemaker, 128 Wn.2d 116, 120, 904 P.2d 1150 (1995).
“The threshold requirement of res judicata is a valid and final judgment on the merits in a
prior suit.” Ensley, 152 Wn. App. at 899. “Res judicata applies where the subsequent action
involves (1) the same subject matter, (2) the same cause of action, (3) the same persons or parties,
and (4) the same quality of persons for or against whom the decision is made as did a prior
adjudication.”14 Williams v. Leone & Keeble, Inc., 171 Wn.2d 726, 730, 254 P.3d 818 (2011)
(citing In re Estate of Black, 153 Wn.2d 152, 170, 102 P.3d 796 (2004)).
A trial court does not have the authority to modify even its own decree in
the absence of conditions justifying the reopening of the judgment. RCW
14
Neither Andrew nor Michelle address these four factors.
17
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26.09.170(1); Kern v. Kern, 28 Wn.2d 617, 619, 183 P.2d 811 (1947). An
ambiguous decree may be clarified, but not modified. RCW 26.09.170(1); In re
Marriage of Greenlee, 65 Wn. App. 703, 710, 829 P.2d 1120, review denied, 120
Wn.2d 1002, 838 P.2d 1143 (1992). A decree is modified when rights given to one
party are extended beyond the scope originally intended, or reduced. A
clarification, on the other hand, is merely a definition of rights already given,
spelling them out more completely if necessary. Rivard v. Rivard, 75 Wn.2d 415,
418, 451 P.2d 677 (1969).
In re Marriage of Thompson, 97 Wn. App. 873, 878, 988 P.2d 499 (1999).
2. ANDREW’S SUPPLEMENTAL RES JUDICATA ARGUMENT
Andrew does not dispute that the four res judicata factors exist. Instead, he contends that
because the USFSPA preempts state law, the superior court had no authority to award Michelle
any military disability benefits, even by agreement, and therefore, the superior court lacked subject
matter jurisdiction and the order awarding Michelle military benefits was void ab initio and cannot
be res judicata.15 Our Supreme Court’s decision in In re Marriage of Brown, 98 Wn.2d 46, 653
P.2d 602 (1982),16 disposes of Andrew’s jurisdictional argument.
“The critical concept in determining whether a court has subject matter jurisdiction is the
‘type of controversy.’” Dougherty v. Dep’t of Labor & Indus., 150 Wn.2d 310, 316, 76 P.3d 1183(2003) (quoting Marley v. Dep’t of Labor & Indus., 125 Wn.2d 533, 539, 886 P.2d 189 (1994)).
“‘If the type of controversy is within the subject matter jurisdiction, then all other defects or errors
15
Michelle contends that this argument does not address the res judicata issue and that this is a
“newly-minted” jurisdictional argument that we should “disregard.” Second Suppl. Br. of Resp’t
at 3, 7. Because Andrew’s jurisdictional argument pertains to the validity and finality of the
dissolution decree, which is relevant to res judicata, we address his argument. See Ensley, 152 Wn.
App. at 899 (“The threshold requirement of res judicata is a valid and final judgment on the merits
in a prior suit.”).
16
Neither party cites to Brown.
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go to something other than subject matter jurisdiction.’” Id. (internal quotation marks omitted)
(quoting Marley, 125 Wn.2d at 539).
Superior courts are courts of general jurisdiction and “have long had the ‘power to hear
and determine all matters, legal and equitable, . . . except in so far as these powers have been
expressly denied.’” In re Marriage of Major, 71 Wn. App. 531, 533-34, 859 P.2d 1262 (1993)
(alteration in original) (quoting State ex rel. Martin v. Superior Court, 101 Wash. 81, 94, 172 P.
257 (1918)). The superior courts are granted broad subject matter jurisdiction by article 4 § 6 of
our state constitution, which states that the superior courts have jurisdiction “in all cases and of all
proceedings in which jurisdiction shall not have been by law vested exclusively in some other
court.” See also Major, 71 Wn. App. at 533. Additionally, the superior courts have statutory
jurisdiction to hear family law matters, including “the distribution of property or obligations.”
RCW 26.12.010. In light of this broad constitutional and statutory grant of subject matter
jurisdiction, “courts may only find a lack of jurisdiction under compelling circumstances, such as
when it is explicitly limited by the Legislature or Congress.” See Major, 71 Wn. App. at 533-34.
In Mansell, the Supreme Court expressly held that the decision of whether to reopen a final
settlement or whether that final decision was res judicata was an issue of state law over which the
Supreme Court had no jurisdiction. Mansell, 490 U.S. at 586 n.5. And, notably, the Supreme Court
denied review after the California Court of Appeal later held that the superior court had not
reopened the judgment. Mansell, 498 U.S. at 806.
Similarly, our Supreme Court’s decision in Brown establishes that, under state law, errors
applying federal legislation in this context are errors of law that do not divest Washington courts
of subject matter jurisdiction or automatically open its judgments to collateral attack. Brown, 98
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Wn.2d at 48-49; see also Tarver v. Reynolds, 2019 WL 3889721 (M.D. Ala. Aug. 16, 2019) (court
order) (citing other jurisdictions holding that the USFSPA does not restrict subject matter
jurisdiction),17 aff’d, 808 F. App’x.752 (11th Cir. 2020).
In Brown, the two appellants argued, similar to Andrew’s argument here, that the pre-
McCarty retirement pay divisions in their respective property settlements were void, and therefore
subject to collateral attack, because under McCarty the trial court lacked subject matter jurisdiction
over military retirement pay. 98 Wn.2d at 48. Our Supreme Court rejected this argument, holding
that errors in applying federal legislation are errors of law that do not deprive a court of its
jurisdiction or open its judgments to collateral attack. Id. at 48-49. Under Brown, Andrew’s subject
matter jurisdiction argument fails.18
Courts in other states have also recognized that errors in applying federal legislation are
errors of law that do not deprive the state court of subject matter jurisdiction. For instance, In re
Marriage of Williams, 307 Kan. 960, 417 P.3d 1033 (2018), a case very similar to this one, the
17
Tarver cites to two post-Howell cases that reject the argument that the USFSPA affects subject
matter jurisdiction, Gross v. Wilson, 424 P.3d 390, 397 n.34 (Alaska 2018) (holding that the
USFSPA and the Supreme Court’s Mansell decision do not affect subject matter jurisdiction and
noting that “[a] majority of state courts that have addressed the issue treat the USFSPA and Mansell
as a rule of substantive federal law, and not a jurisdictional matter.”), and In re Marriage of
Williams, 307 Kan. 960, 417 P.3d 1033 (2018) (see discussion of this case below).
Tarver also cites to several pre-Howell cases: Moore v. Moore, 484 S.W.3d 386, 391-92
(Mo. App. W.D. 2016); Coon v. Coon, 364 S.C. 563, 614 S.E.2d 616, 617-18 (2005), cert. denied,
546 U.S. 1090 (2006); McLellan v. McLellan, 33 Va. App. 376, 533 S.E.2d 635, 637 (2000); In re
Marriage of Curtis, 7 Cal. App. 4th 1, 9 Cal. Rptr. 2d 145, (Ct. App. 1992); Maxwell v. Maxwell,
796 P.2d 403, 407 (Utah Ct. App. 1990) (adopting reasoning from California Court of Appeal
Mansell decision); Evans v. Evans, 75 Md. App. 364, 541 A.2d 648, 650-52 (1988); Konzen v.
Konzen, 103 Wn.2d 470, 693 P.2d 97, cert. denied, 473 U.S. 906 (1985).
18
Brown also discussed whether McCarty could be applied retroactively and held that it could not.
98 Wn.2d at 50. Here, Andrew, who, as the appellant, has the burden of demonstrating that the
trial court’s order was improper, does not argue that Howell is retroactive.
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Kansas Supreme Court concluded in a post-Howell case that the USFSPA does not deprive state
trial courts of subject matter jurisdiction. The court stated that the Supreme Court’s footnote 5 in
Mansell “implicitly recognized the USFSPA did not limit state court subject-matter jurisdiction”
because, “if the [USFSPA] had the effect of depriving a state court of subject-matter jurisdiction,
then res judicata would not protect the judgment.” Williams, 417 P.3d at 1044.
The Williams court further noted that on remand the California Court of Appeal expressly
rejected the argument that McCarty and that the Supreme Court’s Mansell decision addressed
subject matter jurisdiction over retirement or disability pay. Id. The Kansas court concluded that
“[t]he United States Supreme Court’s footnote in Mansell and the subsequent proceedings [in the
case after remand to the California courts] eliminate ‘any remaining possibility that the holdings
in McCarty and Mansell are rules of subject matter jurisdiction,” and that “the USFSPA does not
deprive a state court of subject-matter jurisdiction.” Id. (quoting 2 Turner, Equitable Division §
6:6).
Based on the California Court of Appeal’s Mansell decision, Brown, and the persuasive
discussion in Williams, we hold that the superior court had jurisdiction and, thus, Andrew’s
argument that a lack of jurisdiction precludes the application of res judicata fails. Because Andrew
fails to otherwise assert that res judicata does not apply, we hold that res judicata applies here.
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Andrew cites to several cases to support his argument.19 These cases are not persuasive and
do not change our decision.
First, Andrew cites to Howell, arguing that Howell addresses “whether a state court’s order,
entered by agreement that divides preempted VA disability benefits is final; and therefore, could
not be reopened.” Suppl. Br. of Appellant at 6. But Howell does not address this issue, nor does it
discuss res judicata. Instead, as the Supreme Court did in its Mansell decision, the Howell court
presumed, without discussion, that the divorce decree at issue had been reopened in the state court.
See Howell, 137 S. Ct. at 1406. In Howell, unlike in Mansell, the assumption that the state court
had reopened the case is supported by the Arizona Supreme Court opinion, which held that
although the wife originally brought the action as an enforcement action, the resulting order
actually “modified the original property disposition terms,” and, “[a]s a result, despite [the wife’s]
request that the family court enforce the decree, the family court necessarily modified the initial
property disposition terms” under state law. Howell, 238 Ariz. at 411 (emphasis added), reversed
19
In oral argument, Andrew argued that res judicata does not apply because he is not challenging
the original decree and is, instead, appealing only the order enforcing the portion of the original
decree, which he asserts was void at its inception. This argument fails.
Because, as discussed above, errors in applying federal legislation are errors of law that do
not deprive the state court of subject matter jurisdiction or render a decree void, we view Andrew’s
claim that the original, unchallenged decree was void at its inception as an impermissible collateral
attack on an un-appealed decree. Furthermore, there is nothing in the Agreement adopted by the
decree or in the order enforcing the agreement that requires Andrew to pay Michelle from his
disability payment. Instead, the decree and the order merely require Andrew to ensure that
Michelle receives an amount equal to the 45 percent of Andrew’s original retirement pay, it does
not specify the source of those payments.
We note that at oral argument Andrew was unable to cite to any authority that allowed an
appellant to challenge the validity of a final order by means of a challenge to a motion to enforce
the agreement, and he has not since filed any additional authority related to this issue. Accordingly,
we reject this argument.
22
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by Howell, 137 S. Ct. at 1406. Here, nothing in the superior court’s order modified the original
property disposition terms, the superior court merely enforced the existing terms.20
In addition to not addressing whether the decree had been reopened in the state court,
Howell does not mention footnote 5 of the Supreme Court’s Mansell decision. Thus, Howell does
not address whether orders such as the one here can be final. And since the order at issue in Howell
was deemed a modification that reopened the original decree, Howell does not overrule footnote 5
in the Supreme Court’s Mansell decision.
Second, Andrew cites to Sprietsma v. Mercury Marine, 537 U.S. 51, 123 S. Ct. 518, 154
L. Ed. 2d 466 (2002), for the premise that “when a state court lacks subject matter jurisdiction to
enter an order because federal law absolutely preempts it, it is not enforceable.” Suppl. Br. of
Appellant at 2. Sprietsma was an appeal from a court order granting a motion to dismiss a tort
action that, unlike here, was not a final order. 537 U.S. at 55. And the case does not discuss res
judicata. Id. Thus, it is not relevant to this case.
Additionally, although Andrew cites Sprietsma to support his assertion that a state court
lacks “subject matter jurisdiction to enter an order” if an area of law is preempted by federal law,
that premise is not stated anywhere in Sprietsma. See Suppl. Br. of Appellant at 2. At best,
Sprietsma demonstrates that if a common law claim is preempted by federal law, there is no legal
basis for a state common law claim.
Third, Andrew cites Ridgway v. Ridgway, 454 U.S. 46, 54, 102 S. Ct. 49, 70 L. Ed. 2d 39(1981), for the premise that the Supreme Court can correct the state court to the extent the state
20
In fact, Andrew contends in his reply brief that the trial court here did not modify the decree and
that it, instead, merely enforced the terms of the decree.
23
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court has incorrectly adjudged federal rights, stating that a “‘state divorce decree, must give way
to conflicting federal law’” under the Supremacy Clause. Suppl. Br. of Appellant at 2-3 (quoting
Ridgway, 454 U.S. at 55). Ridgway addressed whether a husband could change the beneficiary
designation in an insurance policy that fell under the Servicemen’s Group Life Insurance Act of
1965 (SGLIA) to his second wife despite a “state divorce judgment” that ordered him to maintain
life insurance policies for the benefits of his three children. 454 U.S. at 48. After the husband died,
the first wife and the second wife both attempted to claim the insurance proceeds. Id. The Supreme
Judicial Court of Maine held that the SGLIA did not prevent the court from imposing a constructive
trust on the insurance proceeds for the benefit of the minor children. Id. at 54.
The Supreme Court held that under the SGLIA, the husband had the right to change the
beneficiary despite the divorce judgment and that the Court had the ability to “‘correct’” the “‘state
judgment[ ]’” “‘to the extent that [it] incorrectly adjudge[d] federal rights.’” Id. (quoting Herb v.
Pitcairn, 324 U.S. 117, 125-26, 65 S. Ct. 459, 89 L. Ed. 789 (1945)). Although Ridgway is an
example of how federal law can trump a provision of a divorce decree and states that the Supreme
Court’s “‘only power over state judgments is to correct them to the extent that they incorrectly
adjudge federal rights,’” Ridgway does not address res judicata. Id. (quoting Herb, 324 U.S. at
125-26).
Fourth, Andrew cites to Kalb v. Feuerstein, 308 U.S. 433, 439 n.12, 60 S. Ct. 343, 84 L.
Ed. 370 (1940), for the premise that the State cannot vest state courts with the power to violate the
supreme law of the land and that any attempt to “get around the operation of federal law is subject
to collateral attack.” Suppl. Br. of Appellant at 3-4. But in Kalb the issue was whether an action in
bankruptcy, a subject over which the state court had no subject matter jurisdiction, could preclude
24
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a state court action. 308 U.S. at 438-39. Kalb addressed the jurisdiction of the state court over a
matter related to bankruptcy, which is clearly an area of law outside the state court’s jurisdiction.
Id. Here, in contrast, nothing in the USFSPA relieved the state court of jurisdiction and all we must
address is an error of law.
In addition to the above arguments, Andrew comments, apparently in an attempt to
establish that an examination of res judicata is not required, that the Supreme Court’s Mansell
decision did not address whether the challenged order was final and could not be reopened or
whether the order was therefore res judicata. Andrew is correct that the Supreme Court did not
address res judicata, but the Court’s failure to address this issue does not imply that res judicata is
irrelevant because the failure to address the finality/res judicata issue based on the Court’s
assumption that the state court had already decided that issue—an assumption that the California
Court of Appeal later explained was incorrect. Mansell, 490 U.S. at 586 n.5; Mansell, 217 Cal.
App. 3d at 224-25, 235.
Andrew fails to show that the Agreement adopted in the decree was void at its inception.
He also fails to claim that the enforcement action did not involve “(1) the same subject matter, (2)
the same cause of action, (3) the same persons or parties, and (4) the same quality of persons for
or against whom the decision is made as did a prior adjudication.” Williams, 171 Wn.2d at 730
(citing Black, 153 Wn.2d at 170). Thus, he fails to establish that res judicata does not apply here.
Under the doctrine of res judicata, Andrew could not request that the trial court revisit the
property settlement agreement in the absence of a CR 60 motion, and he filed no such motion.
Thompson, 97 Wn. App. at 878 (“A trial court does not have the authority to modify even its own
25
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decree in the absence of conditions justifying the reopening of the judgment.”). Accordingly, we
affirm the superior court order granting Michelle’s motion to enforce the Agreement.21
B. ANDREW’S CHALLENGE TO SUPERIOR COURT’S FINDING
Andrew also appears to argue that “the parties arguably took into account the contingency
of Andrew’s waiver of retirement and agreed to an offset (the disproportionate share of property)
in lieu of going to trial.” Opening Br. of Appellant at 10-11. Andrew claims that “the
disproportionate share of property” was the award of 100 percent of the interest in the family home
and the award of spousal maintenance.22 See id. at 10. In his reply, he further argues that the decree
did not demonstrate an intent that he “provide a ‘permanent stream of income’ to Michelle through
payment of VA disability.” Reply Br. of Appellant at 17.
We construe these arguments as a claim that the superior court misinterpreted the contract
terms when it found that “[b]y the terms of their agreement, [Andrew] agreed to reimburse
[Michelle] for any sum that she lost due to the [disability] waiver.” CP at 97. The interpretation of
21
To the extent Andrew is also arguing that the trial court could not order the military to pay
Michelle a portion of his disability pay, that argument fails because the Military Retirement Order
did not order the military to pay Michelle any portion of his disability pay. Instead, the Military
Retirement Order required Andrew to pay Michelle 45 percent of his retirement pay and to
“indemnify and pay directly to [Michelle] any sums reduced” by his choice to receive disability
pay in lieu of retirement. CP at 639 (sealed document) (emphasis added). Furthermore, 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,” so these provisions must be interpreted
in a manner consistent with the USFSPA’s prohibition against awarding Michelle with any portion
of Andrew’s disability pay. Id.22
We note that the record does not support Andrew’s assertion that Michelle was awarded a 100
percent interest in the home because the Agreement required the parties to divide any profit or loss
from the possible sale of the home, which sale was required if Michelle failed to refinance the
home within a specific period of time.
26
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the language of a property settlement agreement is a question of law that we review de novo. In re
Marriage of Gimlett, 95 Wn.2d 699, 705, 629 P.2d 450 (1981).
Andrew’s interpretation of the Agreement would contradict the Agreement’s plain
language, which expressly states that the amount Michelle was “entitled to receive each month
under the terms of th[e] order” would not be reduced if Andrew chose to receive disability in lieu
of retirement. CP at 8. This part of the Agreement clearly demonstrates an intent to maintain a
consistent stream of income to Michelle.
Andrew also contends that the Agreement did not place any burden on him “to make up
for the financial loss resulting from [Defense Finance and Accounting Service’s] refusal to enforce
the state court order.” Reply Br. of Appellant at 17. Although Andrew is correct that the Agreement
did not expressly say how he would have to ensure that the reduction in his retirement pay did not
reduce the amount Michelle received, Andrew does not cite any authority establishing that such
detail was required. The Agreement clearly required Andrew to pay Michelle an amount equal to
his retirement benefit without any reduction, the method of how he was to do this was irrelevant.
Accordingly, Andrew fails to show that the superior court misinterpreted the contract terms when
it found that “[b]y the terms of their agreement, [Andrew] agreed to reimburse [Michelle] for any
sum that she lost due to the [disability] waiver.” CP at 97.
III. MICHELLE’S CROSS APPEAL
Michelle argues that if we reverse the superior court order enforcing the Agreement, that
we should hold that the superior court commissioner abused her discretion in denying Michelle’s
CR 60(b)(11) motion to vacate the decree. Because we affirm the superior court order enforcing
27
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the decree, there is no need to remand for the commissioner to address that issue in Michelle’s
motion to vacate the decree.
Michelle further argues that the commissioner abused her discretion in refusing to address
the beneficiary designation issue raised in the CR 60 motion. The commissioner did not address
Michelle’s separate beneficiary designation issue, so remand of the CR 60 motion back to the
commissioner to address the beneficiary designation issue is required.
IV. ATTORNEY FEES AWARDED BY COMMISSIONER AND SUPERIOR COURT
Andrew argues that the fees that the commissioner and superior court awarded to Michelle
should be reversed. But those fees were awarded based on Michelle’s need and Andrew’s ability
to pay, and Andrew presents no argument establishing that the commissioner and superior court’s
evaluations of those factors were improper. Accordingly, we deny Andrew’s request to reverse the
fees awarded by the commissioner and the trial court.
ATTORNEY FEES ON APPEAL
On appeal, Andrew requests attorney fees under RAP 18.1 and RCW 26.09.140 based on
the arguable merit of the issues on appeal. Because Andrew’s arguments fail, we deny this request.
Michelle requests attorney fees on appeal under RCW 26.09.140 based on her need and
Andrew’s ability to pay. Michelle filed an affidavit of financial need on November 22, 2019, prior
to the original December 3, 2019 oral argument date. See RAP 18.1(c). Given the failure of
Andrew’s arguments and the apparent differences in the parties’ respective resources, we grant
Michelle’s request upon her compliance with RAP 18.1(d).
28
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CONCLUSION
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 direct
challenge to the superior court’s interpretation of the Agreement. Accordingly, we affirm the
superior court’s order enforcing the Agreement.
In light of this decision, we also affirm the denial of Michelle’s CR 60 motion to vacate
the 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.
CRUSER, J.
We concur:
WORSWICK, J.
SUTTON, A.C.J.
29