Opinion
No. 33148-9-II.
October 3, 2006.
Appeal from a judgment of the Superior Court for Pierce County, No. 04-3-00552-2, Kathryn J. Nelson, J., entered March 4, 2005.
Counsel for Appellant(s), Thomas Ted Osinski Jr, Attorney at Law, 944 Court E, Tacoma, WA, 98402-5604.
Counsel for Respondent(s), Robert Helland, Attorney at Law, 960 Market St, Tacoma, WA, 98402-3605.
Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Armstrong and Penoyar, JJ.
This appeal follows dissolution of the marriage between Jennie Marie Sisk (fka Jimmie B. Sisk) and Christina Martha On appeal, Sisk raises several issues concerning the trial court's award of child support and maintenance to Soto, the trial court's consideration of Sisk's military service and veterans' disability pensions, and the trial court's valuation of the family home. We affirm.
FACTS
Sisk and Soto married in 1985, and had three children. Sisk served in the military from 1981 to 2003. Sisk sustained several injuries during military service and, on retirement, the 1 Soto changed her last name from Sisk in the decree of dissolution.
United States Department of Veterans Affairs concluded that Sisk was 60 percent disabled. Sisk retired in 2003, after deciding to undergo sexual reassignment surgery.
On retirement, Sisk was eligible to receive a taxable military service pension. Sisk was also eligible to receive a nontaxable veterans' disability pension equal to 60 percent of the service pension, but only if Sisk waived 60 percent of the service pension. See Burkins v. United States, 112 F.3d 444, 447 (10th Cir. 1997) (discussing 38 U.S.C. §§ 5304- 5305). Sisk elected to receive the disability pension.
Because Sisk opted to receive a disability pension, is at least 50 percent disabled, and had at least 20 years of military service, Sisk also receives "service pension restoration pay" (SPRP).2 See Howard v. United States, 354 F.3d 1358, 1360 (Fed. Cir. 2004) (discussing National Defense Authorization Act for Fiscal Year 2004, Pub.L. No. 108-136, § 641, 117 Stat. 1392, 1511 (2003)). This term is unofficial and not commonly used in case law. The term is also misleading in that the pay is not disability compensation; rather, the pay gradually restores, over 10 years, the service pension amount waived to obtain the disability pension.
Soto filed a petition to dissolve the marriage in 2004. At the time of trial, Soto worked part time and was earning $150 per month. The trial court found that Soto had chronic medical problems that required surgery and affected her ability to work. Sisk was unemployed and taking college courses to obtain a nursing degree as part of a veterans' vocational rehabilitation program.
The trial court awarded Soto (1) child support based on an imputed income to Sisk; (2) $500 in monthly maintenance until further court order; 3 and (3) 40.24 percent of Sisk's SPRP. The
2 The superior court referred to SPRP as "Concurrent Disability Pay." 3 Clerk's Papers (CP) at 325.
3 The monthly maintenance award is offset by the property equity payments of $500 per month that Soto is required to pay until the $9,000 in property equity owed to Sisk is satisfied. parties agreed to the trial court's SPRP award.
This appeal followed.
ANALYSIS
Child Support
Under RCW 26.19.071(6), a court must impute income to a parent who is voluntarily unemployed for the purpose of avoiding child support obligations. It may also impute income to a parent who is voluntarily underemployed. "The court shall determine whether the parent is voluntarily underemployed or voluntarily unemployed based upon that parent's work history, education, health, and age, or any other relevant factors." RCW 26.19.071(6). Income shall not be imputed for an unemployable parent. RCW 26.19.071(6); In re Marriage of Blickenstaff, 71 Wn. App. 489, 496-97, 859 P.2d 646 (1993) (defining "unemployable" as "not acceptable for employment as a worker") (quoting Webster's Third New International dictionary 2493 (2d ed. 1969)); In re Marriage of Jonas, 57 Wn. App. 339, 340, 788 P.2d 12 (1990) (stating that voluntary unemployment does not shield a parent from an obligation to support his or her children). Generally, a parent's imputed income shall be based on the median income of year-round full-time workers as derived from the United States Bureau of Census, current population reports, or such replacement report as published by the Bureau. RCW 26.19.071(6).
Here, Sisk was unemployed and enrolled in college taking nursing classes as part of a veterans' vocational rehabilitation program. The trial court imputed Sisk's income as a 40-year-old female at $1,957 per month and added that amount to Sisk's military service and veterans' disability pensions for a total monthly net income of $3,367. Sisk now maintains that it was error to impute her income because she had unsuccessfully applied for numerous jobs and because, "[a]s a disabled and transgendered person, Appellant faces great difficulty in gaining employment. That is why she chose to undergo retraining to expand her skills and marketability." Br. of Appellant at 9 (citation omitted). We disagree.
Whether Sisk was voluntarily unemployed is a factual finding that we will uphold if it is supported by substantial evidence. See In re Marriage of Mattson, 95 Wn. App. 592, 599, 976 P.2d 157 (1999); In re Marriage of Brockopp, 78 Wn. App. 441, 446, 898 P.2d 849 (1995). A parent is voluntarily unemployed when the "unemployment is brought about by one's own free choice and is intentional rather than accidental." Blickenstaff, 71 Wn. App. at 493.
In Jonas, we held that both spouses were voluntarily unemployed when the husband was unemployed while attending school and the wife was capable of employment but had chosen to stay at home to care for her children. We acknowledged the reasonableness of these decisions but stated, "[n]o matter how legitimate their reasons, . . . each is accountable for earnings forgone in making the choice to be unemployed. Although their reasons are different, their status is the same: each is unemployed for personal, albeit legitimate, reasons." Jonas, 57 Wn. App. at 340.
Sisk is not unemployable as a partially disabled transsexual. Sisk's physical disability did not force her to retire from the military and, although we would be naive to think she does not face discrimination as a transsexual, she is still employable. Indeed, she undoubtedly plans to secure employment once she obtains her nursing degree. Ultimately, Sisk's current unemployment is the result of her voluntary and personal choices to retire from the military, to
4 Accord In re Marriage of Pollard, 99 Wn. App. 48, 53, 991 P.2d 1201 (2000) (concluding that a full-time mother and homemaker did not have "gainful" employment and was thus underemployed); In re Marriage of Wright, 78 Wn. App. 230, 234, 896 P.2d 735 (1995) (concluding that mother was voluntarily underemployed where she was the primary caretaker for five children and served in the National Guard, but worked half-time as a nurse). undergo sexual reassignment surgery, and to rely on her military benefits while obtaining her nursing degree. Sisk's decisions, while legitimate, support the trial court's finding that she was voluntarily unemployed. The trial court did not err in imputing Sisk's income as a 40-year-old female and awarding child support accordingly.
Spousal Maintenance
Sisk raises several issues concerning the trial court's award of spousal maintenance to Soto. Sisk maintains that the trial court erred in imputing income to her for purposes of determining maintenance, in considering her veterans' disability pension, and in awarding maintenance for an indefinite period. We reject each of these contentions.
RCW 26.09.090 sets forth the following nonexclusive factors a trial court should consider in determining the propriety of spousal maintenance: the financial resources of the parties; the standard of living established during the marriage; the duration of the marriage; the time necessary for the party seeking maintenance to acquire sufficient training to enable the party to find appropriate employment; and the age, physical and emotional condition, and financial obligations of the spouse seeking maintenance.
Maintenance is a flexible tool designed to equalize the parties' standard of living for an appropriate period after marital dissolution. In re Marriage of Sheffer, 60 Wn. App. 51, 55, 802 P.2d 817 (1990). "[T]he only limitation placed upon the trial court's ability to award maintenance is that the amount and duration, considering all relevant actors, be just." In re Marriage of Washburn, 101 Wn.2d 168, 178, 677 P.2d 152 (1984); see also RCW 26.09.090(1) (the trial court may grant maintenance "in such amounts and for such periods of time as the court deems just."). We review a maintenance award for an abuse of discretion. In re Marriage of Zahm, 138 Wn.2d 213, 226-27, 978 P.2d 498 (1999). A court abuses its discretion only when its decision is manifestly unreasonable or based on untenable grounds. In re Marriage of Foley, 84 Wn. App. 839, 845, 930 P.2d 929 (1997).
Imputed Income
Sisk first contends that although a trial court may impute income for an award of child support, the trial court erred in imputing her income to determine the appropriateness of a maintenance award to Soto.
But there is no evidence in the record that the trial court imputed income to Sisk in considering the maintenance award. Sisk's lone cite to the record is to a passage on a motion for reconsideration where the parties addressed imputing income to Sisk in calculating child support payments. There is no mention of the trial court considering an imputed income for the maintenance award in the trial court's oral ruling, memorandum opinion, written findings of fact and conclusions of law, or in the final decree of dissolution. Sisk's argument is thus without basis. The trial court did not impute income to Soto. The trial court found that Soto had "limited financial recourse and limited ability to earn money. . . . After a 16-year marriage, [Soto] has virtually no assets or retirement, and the assets are being divided equitably between the parties." 3 Clerk's Papers (CP) at 415. It also found that Soto had chronic medical problems that required surgery and affected her ability to work.
Soto was awarded the parties' homes and is required to offset the spousal support against the equity interest owed to Sisk.
Consideration of Sisk's Veterans' Disability Pension
Federal law prohibits a state dissolution court from dividing a veterans' disability pension and from distributing by any means any part of such pension. In re Marriage of Perkins, 107 Wn. App. 313, 318, 26 P.3d 989 (2001). Where a disability pension partially supplants a retirement pension, this rule works to the detriment of a veteran's spouse, since generally in Washington,
[w]hen disability benefits replace compensation earned but deferred during marriage (e.g., retirement benefits), they are distributable at a dissolution trial. . . . "If . . . a party would be receiving retirement benefits but for a disability, so that disability benefits are effectively supplanting retirement benefits, the disability payments are a divisible asset to the extent they are replacing retirement benefits."
Perkins, 107 Wn. App. at 317-18 (third alteration in original) (quoting In re Marriage of Geigle, 83 Wn. App. 23, 31, 920 P.2d 251 (1996)). Although a Washington dissolution court may not divide or distribute a veterans' disability pension, "it may consider" a spouse's entitlement to an undivided veterans' disability pension "as one factor relevant to a just and equitable distribution of property under RCW 26.09.080, and as one factor relevant to an award of maintenance under RCW 26.09.090, provided of course that it follows the usual state-law rules for applying those statutes." Perkins, 107 Wn. App. at 322-23 (footnotes omitted). See also In re Marriage of Kraft, 119 Wn.2d 438, 451, 832 P.2d 871 (1992).
In asserting that the trial court improperly divided her disability pension, Sisk relies entirely on Perkins. There, we found error where the trial court reduced the military disability pension to present value, made an equal division of the pension, and termed the award, "compensatory spousal maintenance." Perkins, 107 Wn. App. at 316. We concluded that the award was "precisely the kind of dollar-for-dollar division" that violated federal law, and that the law "cannot be circumvented simply by chanting 'maintenance'" in making the award. Perkins, 107 Wn. App. at 324. However, in remanding for further proceedings, we reiterated that the trial court could still make an award of maintenance if it considered "the existence of an undivided disability pension as one factor (among many) bearing on the husband's ability to pay." Perkins, 107 Wn. App. at 327.
The present case bears no resemblance to Perkins. Here, the trial court was undisputedly cognizant of Perkins and federal law, and it specifically acknowledged that "[a] veteran's disability pension may not be divided." 3 CP at 415. The trial court did not attempt to assess the present value of the disability pension. The trial court wrote the following, addressing Sisk's disability pension:
The court is also aware that [Sisk] presently has a 60% veteran's disability rating for which [Sisk] receives $1,026 tax free every month. The court is aware that said payment is non divisible however said payment is a factor to be taken into consideration in terms of awarding spousal maintenance. The court is aware that [Sisk] will likely receive said amount, together with cost of living increases, for the balance of [Sisk's] life. The court is further aware that said disability waiver replaces [Sisk's] military retired pay which was earned during the course of the marriage and which the court would normally have allocated between the parties. . . . The court is aware that this leaves [Soto] in a less favorable financial situation.
3 CP at 416. In addition to Sisk's undivided interest in the disability pension, the trial court considered several factors relevant to Soto's maintenance award: (1) that Soto had limited education, career prospects, and "no assets or retirement" due to her position as a stay-at-home parent during the marriage (3 CP at 415); (2) that Soto had substantial medical bills due to chronic health problems; (3) that Soto had considerable financial obligations; and (4) that Sisk had the means to provide maintenance due to her unused current earning capacity, her pensions, her veterans' benefits, her limited child support obligations, and her prospects for employment after completing her nursing degree.
The record here reflects that the trial court did not explicitly or implicitly divide Sisk's nondivisible disability pension. Instead, it carefully considered the factors set forth in RCW 26.09.090 and concluded that it was just to award Soto $500 in monthly maintenance. We reject Sisk's challenge to the maintenance award on this basis.
SPRP
Although federal law forbids the division of a disability pension, it does permit a state dissolution court to divide a veteran's nondisability retired pay. Perkins, 107 Wn. App. at 320. "[A] court may treat disposable retired pay . . . either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court." 10 U.S.C. § 1408(c)(1). "Disposable retired pay" is defined as "the total monthly retired pay to which a member is entitled less amounts which . . . (B) are deducted from the retired pay of such member . . . as a result of a waiver of retired pay required by law in order to receive" veterans' disability compensation. 10 U.S.C. § 1408(a)(4).
Here, Sisk argues that the trial court improperly divided her disability pension by awarding Soto 40.24 percent of Sisk's SPRP. But Sisk agreed to the award and waived any right she may have had to appeal. Moreover, she incorrectly characterizes SPRP as a disability pension. Sisk's SPRP gradually restores, over 10 years, the service pension amount waived to obtain the disability pension. The service pension is divisible as "disposable retired pay." 10 U.S.C. § 1408(a)(4). SPRP is not pay deducted from a veteran's retired pay in order to receive a disability pension. Because SPRP meets the definition of "disposable retired pay" under 10 U.S.C. § 1408(a)(4), the trial court did not err in awarding a percentage of it to Soto.
Term of the Award
Sisk also maintains that the trial court erred ordering maintenance "until further order of the court." 3 CP at 423. Sisk aligns this term with a lifetime award of spousal maintenance, which, according to Sisk, is normally discouraged. See In re Marriage of Mathews, 70 Wn. App. 116, 124, 853 P.2d 462 ("Our courts have approved awards of lifetime maintenance in a reasonable amount when it is clear the party seeking maintenance will not be able to contribute significantly to his or her own livelihood."), review denied, 122 Wn.2d 1021 (1993); In re Marriage of Coyle, 61 Wn. App. 653, 657, 811 P.2d 244 (While "it is generally not the policy of this state to place a permanent responsibility for spousal maintenance upon a former spouse, there are circumstances which require a continuing obligation.") (citation omitted), review denied, 117 Wn.2d 1017 (1991). But here, the trial court's order of maintenance until further court order is not a lifetime award. Rather, it is a flexible term that allows for modification under RCW 26.09.170(1) at any time, by either party, upon a substantial change of circumstances. See RCW 26.09.090(1) (the trial court may grant maintenance "for such periods of time as the court deems just."). Sisk provides no authority supporting her lifetime award claim and the challenge to the maintenance award on this basis is without merit.
Home Appraisal
Sisk and Soto each provided an expert appraisal of the family home: Sisk's appraiser valued the home at $177,000; Soto's appraiser, James Tesso, valued the home at $157,000. On cross-examination, Tesso conceded that he had four pending complaints filed with the state, including one by Sisk's attorney in an unrelated matter. The trial court set the value for the home at $166,000. Sisk now maintains for the first time that the trial court erred in considering Tesso's "biased" appraisal. This claim fails for several reasons.
First, Sisk did not object to Tesso's testimony or appraisal. See Richmond v. Thompson, 130 Wn.2d 368, 384, 922 P.2d 1343 (1996) (appellate court will not consider a nonconstitutional issue raised for the first time on appeal). Second, witness bias goes to the weight and credibility of the testimony, not its admissibility. State v. Post, 59 Wn. App. 389, 407, 797 P.2d 1160 (1990), aff'd, 118 Wn.2d 596 (1992). Credibility determinations are solely for the trier of fact and are not reviewable on appeal. Morse v. Antonellis, 149 Wn.2d 572, 574, 70 P.3d 125 (2003). And third, when there is conflicting evidence on the value of an asset, the court may adopt the value asserted by either party or any value in between. Here, the trial court's valuation is supported by substantial evidence and is affirmed. In re Marriage of Sedlock, 69 Wn. App. 484, 491-92, 849 P.2d 1243, review denied, 122 Wn.2d 1014 (1993); In re Marriage of Soriano, 31 Wn. App. 432, 435, 643 P.2d 450 (1982). Attorney Fees and Costs
Soto requests attorney fees and costs on appeal. We have discretion to award attorney fees under RCW 26.09.140 after considering the merit of the issues raised on appeal and balancing the needs of the party seeking fees against the ability of the other spouse to pay. In re Marriage of Muhammad, 153 Wn.2d 795, 807, 108 P.3d 779 (2005); In re Marriage of C.M.C., 87 Wn. App. 84, 89, 940 P.2d 669 (1997), aff'd, 136 Wn.2d 800 (1998). The issues raised in Sisk's appeal are of questionable merit and are poorly briefed, but Soto failed to file an affidavit showing her need to recover fees, as required by RAP 18.1(c) (where financial resources are a consideration in award of attorney fees and costs, affidavit of financial need must be filed no later than 10 days before case is set for hearing or consideration). Thus, we decline Soto's request for attorney fees.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
ARMSTRONG, PENOYAR, Armstrong, and Penoyar, concur.