Opinion
No. 25810-6-III.
January 31, 2008.
Appeal from a judgment of the Superior Court for Spokane County, No. 04-3-01215-3, Harold D. Clarke III, J., entered October 30, 2006.
Affirmed by unpublished opinion per Sweeney, C.J., concurred in by Schultheis and Brown, JJ.
This appeal follows the refusal of the trial judge to vacate or reopen a dissolution decree and substitute another liquid asset for a deferred compensation plan. The court awarded the husband's deferred compensation to the wife. She later learned that the provisions of the plan prohibited the husband from transferring it to her. The court concluded that the purpose of the original award was to provide the wife with a stream of income and that this purpose would be served by requiring the husband to pay the wife the monthly income from the plan and requiring him to name her as the primary beneficiary of the plan. These are tenable grounds for this discretionary decision. And we therefore affirm.
FACTS
Dr. Carl and Doris Brunjes married in 1989. Ms. Brunjes petitioned for dissolution of the marriage in 2003. The court entered the final dissolution decree in August 2005, following a trial.
The parties divided over $2.5 million of community property. Ms. Brunjes received 60 percent of the community property. Dr. Brunjes received approximately 40 percent. The trial court awarded Dr. Brunjes his separate property and approximately $1 million of the community property. The wife received $1.5 million of the community property.
The court awarded Ms. Brunjes a deferred compensation plan valued at $386,435. This deferred compensation plan was through Medical Service Corporation (MSC). It pays $3,052.93 per month for a set period of time. The decree awarded the deferred compensation plan: "As such is awarded in lieu of maintenance, and the wife requires such for her monthly expense." Clerk's Papers (CP) at 22.
The trial court ordered Dr. Brunjes to transfer the plan to his ex-wife's name and to pay any monthly benefits to her in the meantime. The decree also provided that "[i]f a QDRO [Qualified Domestic Relations Order] cannot transfer the pension, the parties may reappear for determination of how to effect the transfer." CP at 22.
Ms. Brunjes discovered later that the deferred compensation plan prohibited transfer of the asset. Article H of the MSC deferred compensation plan stated that any "interest, right, or benefit" of the deferred compensation plan cannot be transferred by any "legal process; and any attempt to assign, anticipate or encumber said interest, right or benefit shall terminate this Supplemental Agreement and all rights and obligations . . . shall cease." CP at 159.
The time to appeal the original dissolution decree had run. See CP at 193, 19. Ms. Brunjes moved to vacate or reopen the decree over 10 months after the original decree was filed. She requested that the court place the deferred compensation plan into Dr. Brunjes' side of the property division and award her a "substituting" liquid asset with the same value. CP at 194. The court refused to do that and instead ordered Dr. Brunjes to continue distributing the monthly payments from the deferred compensation plan to his ex-wife because that effected the purpose of the award in the original decree.
DISCUSSION
We review a trial court's decision to grant or deny a motion to vacate under CR 60(b) for an abuse of discretion. In re Marriage of Tang, 57 Wn. App. 648, 653, 789 P.2d 118 (1990); Estate ofTreadwell v. Wright, 115 Wn. App. 238, 249, 61 P.3d 1214 (2003). The decision must be based on tenable grounds or reasons. Tang, 57 Wn. App. at 653. Ms. Brunjes argues that the standard of review is de novo because she says the trial judge mischaracterized the nature of the asset being distributed and that is an error of law. The trial judge characterized the property as an annuity calculated to provide a stream of income rather than a fixed lump sum liquid asset. As we will conclude, that characterization is easily supported by the record here. And, moreover, the characterization of property requiring de novo review is the decision whether the property is community or separate. In re Marriage ofGriswold, 112 Wn. App. 333, 339, 48 P.3d 1018 (2002). That is not an issue here.
Ms. Brunjes moved to vacate the dissolution decree under CR 60(b)(1) and CR 60(b) (11). CR 60(b)(1) allows relief from a judgment on a showing of "[m]istake, inadvertence, surprise, excusable neglect or irregularity in obtaining a judgment or order." CR 60(b)(11) permits relief on a showing of "[a]ny other reason justifying relief from the operation of the judgment." The court may also modify a decree on a showing of "extraordinary circumstances." In re Marriage ofKnies, 96 Wn. App. 243, 248, 979 P.2d 482 (1999).
The original dissolution decree awarded Ms. Brunjes the deferred compensation plan. The plan has a set value but it is an annuity through MSC. And so it pays $3,052.93 a month for a set period of time or for the life of Dr. Brunjes, whichever is longer.
The trial court here intended that Ms. Brunjes receive 60 percent of the community assets. But that unequal division was "in lieu of maintenance." CP at 194. Ms. Brunjes moved to vacate or reopen the decree. The court rejected her request for a couple of reasons. First, Ms. Brunjes had received over $42,000 in annuity payments during the previous 14 months. Second, the court concluded, based on the original findings, conclusions and decree, that the intent was that Ms. Brunjes receive an annuity. The monthly benefits of the plan would be in lieu of maintenance.
Finally, the court concluded that Ms. Brunjes' request for another "liquid asset" would run contrary to the intent of the original award, which was to provide her with an annuity: "If the [trial] court wanted to award [Ms. Brunjes] a liquid asset [instead of the deferred compensation plan which provided monthly benefits] it could have done so." CP at 194.
Instead, the court furthered the purpose of the original decree by ordering Dr. Brunjes to:
(1) Immediately forward the annuity payment to [Ms. Brunjes] each month upon receipt;
(2) Issue a release of information to MSC and any administrator in favor of [Ms. Brunjes];
(3) Name [Ms. Brunjes] as an "irrevocable" beneficiary of the annuity;
(4) Name alternate beneficiaries as [Ms. Brunjes] directs;
(5) Furnish a method of securing payments to the named alternate beneficiaries in the event [Ms. Brunjes] predeceases [Dr. Brunjes] (this amount would be equal to the monthly payment times the number of months left on the guaranteed portion of the contract);
(6) Direct anyone holding a Power of Attorney for [Dr. Brunjes] to follow the terms of the court's Order as to the payments under the contract. CP at 198-99.
The judge's reading of the original decree was a reasonable interpretation. His reasons for refusing to set aside or amend that decree were tenable. And, finally, his directions to Dr. Brunjes adequately and fairly furthered the purpose of the original decree. The judge did not then abuse his discretion. And the judge did not modify the dissolution decree by his ruling. He clarified it and adhered to the trial court's original intent for Ms. Brunjes to receive an annuity (i.e., monthly benefits) in lieu of maintenance. CP at 193-96; In re Marriage of Thompson, 97 Wn. App. 873, 878, 988 P.2d 499 (1999).
The decision to deny the motion to vacate was, then, not based on untenable grounds or reasons. Tang, 57 Wn. App. at 653. The court's conclusion that the circumstances were not extraordinary is supported, particularly since the limitation on the transfer of the corpus was available information before the dissolution trial.
We affirm the decision denying Ms. Brunjes' motion to vacate the decree.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
SCHULTHEIS, J., BROWN, J., concur.