Opinion
No. 32890-9-II.
May 16, 2006.
Appeal from a judgment of the Superior Court for Pierce County, No. 02-3-00868-1, Ronald E. Culpepper, J., and Marc Christianson, J. Pro Tem., entered January 13, 2005.
Counsel for Appellant(s), Karyn Louise Snell (Appearing Pro Se), 21647 Berwhich Run, Estero, FL 33928.
Counsel for Respondent(s), Emmelyn Hart-Biberfeld, Talmadge Law Group PLLC, 18010 Southcenter Pkwy, Tukwila, WA 98188-4630.
Joseph John Michael Lombino, Lombino Martino PS, 1119 Pacific Ave Ste 900, Tacoma, WA 98402-4323.
Philip Albert Talmadge, Talmadge Law Group PLLC, 18010 Southcenter Pkwy, Tukwila, WA 98188-4630
Affirmed by unpublished opinion per Quinn-Brintnall, C.J., concurred in by Armstrong and Van Deren, JJ.
Karyn Snell appeals from the trial court's entry of a Qualified Domestic Relations Order (QDRO), arguing that the court used an erroneous formula in calculating her share of Jeffrey Snell's American Airlines, Inc. pension. The formula the court used in the QDRO is identical to that which the court ordered in the dissolution decree and Karyn did not appeal. Karyn, therefore, waived her right to challenge the pension formula, and we affirm.
FACTS
Jeffrey and Karyn married on November 24, 1994, and separated August 25, 2001. At the time of their marriage, they were both employed by American Airlines; Karyn was a flight attendant, and Jeffrey was a First Officer/Co-Pilot. The couple had two children. Jeffrey filed for dissolution on March 15, 2002. On May 14, 2004, the court entered findings of fact and conclusions of law and a decree dissolving the marriage.
The first names of the parties are used for clarity.
In issuing the dissolution decree, the court found that the parties had community and separate property in two of Jeffrey's American Airline pensions: Fixed Income/Plan A (fixed plan) and Variable Income/Plan B (variable plan). It found the community had an interest in 6.75 years' worth of credited service in the fixed plan and awarded Karyn and Jeffrey each a half interest in it. To calculate the represented value of this community interest, the dissolution decree directed that a formula which used the date of retirement as the dominator be used. Four formulas were set out in the blank QDRO Karyn offered as Exhibit 79. The parties refer to this retirement denominator formula as 'method 4.' The court also found that the community interest in the variable plan represented 1,850.68 units and awarded each party one-half interest in it. The court directed Karyn's interest, totaling 925.34 units, be transferred via a QDRO.
The trial court awarded Jeffrey his separate interest in both plans.
Karyn filed a motion for reconsideration on May 21, 2004, an amended motion on June 2, 2004, and a second amended motion for reconsideration on June 10, 2004, asking, among other things, for the court to reconsider giving the community a larger percentage in Jeffrey's fixed plan. In these motions she did not challenge the court's use of method 4. She also argued that the court improperly calculated how many units of Jeffrey's variable plan she was entitled to, arguing that she should receive 1,647.08 units rather than 925.34. The court denied these motions on July 16, 2004. Neither party appealed.
Six months later, on January 13, 2005, the court held a presentment hearing for entry of the QDRO, the dissolution decree required to transfer the pension interests to Karyn. At that hearing, for the first time, Karyn specifically challenged the court's decision to use the method 4 formula for calculating her community interest in the fixed plan. In the interim, between entry of the dissolution decree and the presentment hearing, Karyn's attorney apparently obtained new plan documents from the American Airlines Plan Administrator. These documents, which are not included in our record, reportedly cautioned against using method 4.
Based on these new plan documents, Karyn argued that the court should use method 3's formula. This formula used the date of separation rather than the date of retirement as its denominator. She argued that the court's use of method 4, which uses the date of retirement as the denominator, dilutes her interest and makes it subject to the whim of Jeffrey's indeterminate self-selected retirement date. The court referenced its May 2004 decision and stated that it was 'duty-bound to follow the decree.' Report of Proceedings at 16.
Apparently, under method 3, Karyn could elect to receive benefits at the date of 'early retirement,' which is the earliest date after the owning participant is 50 years of age and receives benefits or could receive benefits if he left employment. 26 U.S.C. sec. 414(p)(3)(ii); 29 U.S.C. sec. 1056(d)(3)(E)(ii). Karyn argued that Jeffrey was already past his early retirement date, thus making her eligible for disbursement now. But under method 4, Karyn must wait until Jeffrey actually retires in order to collect her share of his pension interest.
The QDRO, which used the exact language of the May 2004 dissolution decree, was entered on January 13, 2005. The court reserved jurisdiction over the parties and the subject in order to amend the order to establish and maintain its status as a QDRO.
The record shows that Karyn made a motion to clarify the record and add this 'new' American Airlines form containing method 3 as an exhibit, which the trial court denied on July 15, 2005. The motion to clarify and add an exhibit is not in the record.
Karyn filed a notice of appeal on February 11, 2005, stating that she is seeking review of the QDRO entered on January 13, 2005, using method 4 to calculate her interest in the pension.
ANALYSIS Untimely Appeal
Jeffrey argues that this court lacks jurisdiction to review the dissolution decree because Karyn's appeal is untimely. Karyn asserts that her appeal is timely because the QDRO is the final order that defined her interest in Jeffrey's pension. We hold that Karyn's appeal is untimely. RAP 2.2(a)(1) and (13) permit a party to appeal a final judgment or any final order made after judgment that affects a substantial right. State v. Taylor, 150 Wn.2d 599, 601, 80 P.3d 605 (2003). Final judgment is '[a] court's last action that settles the rights of the parties and disposes of all issues in controversy, except for the award of costs (and, sometimes, attorney's fees) and enforcement of the judgment.' Taylor, 150 Wn.2d at 602 (quoting Black's Law Dictionary 847 (7th ed. 1999). A final order entered after judgment is appealable under RAP 2.2(a)(13) only if it affects a right other than those adjudicated by the earlier final judgment. State v. Campbell, 112 Wn.2d 186, 190, 770 P.2d 620 (1989). A party has 30 days to appeal. RAP 5.2(a), (e)(1).
Karyn does not argue for discretionary review.
She argues that the QDRO is a final appealable order; she does not argue that the decree itself was not final until the QDRO was entered.
A QDRO is a device used to enforce or facilitate the acquisition of a right or interest awarded in a dissolution decree. It is not substantive in its own right but merely tracks the underlying decree. Brett Turner, 10 No. 6 Divorce Litig. 105 The Mechanics of Dividing Retirement Benefits: Recent Case Law on Preparation of qualified domestic relation order (1988). Unless the QDRO fails to implement the decree, it does not affect new substantial rights and may not be separately appealed.
Here, the dissolution decree set out Karyn's rights in the pensions. The QDRO facilitated the award granted in the court's earlier decree and did not diminish that award, it did not affect her substantial rights and is not a final and appealable order. Karyn does not attack the QDRO's validity nor does she claim that it failed to conform to the underlying dissolution decree. Moreover, the QDRO does not alter Karyn's rights to the pension, it merely gives effect to and enforces the property rights that Karyn was awarded in the dissolution decree.
If Karyn was dissatisfied with the court's use of method 4 to calculate the community interest in Jeffrey's fixed plan or with the amount of units the variable plan gave her, she was required to specifically raise and argue these issues in her motions for reconsideration and, if unsuccessful, to appeal the denial of her motions for reconsideration on those grounds. But she did not. She filed notice of appeal nearly six months later on February 11, 2005. The time has long since passed for her to challenge the merits of the court's decision to use method 4 in this case. RAP 5.2(a), (e) (party has 30 days to appeal the trial court's decision or entry of an order denying a party's motion for reconsideration). The QDRO did not revive the issues decided in the dissolution decree. Thus, we dismiss the appeal as untimely.
Because we find Karyn's appeal untimely, we do not reach her other assignments of error.
Attorney Fees on Appeal
Jeffrey requests fees under RAP 18.9(a) and RAP 18.1.
Jeffrey does not seek fees under the dissolution statute, RCW 26.09.140.
Jeffrey has complied with RAP 18.1 requirements by devoting a section of his brief to his fee request. In addition, Jeffrey requests fees and sanctions under RAP 18.9, claiming that he is entitled to attorney fees for Karyn's failure to cite to authority, provide an adequate record, and for having to respond to a frivolous time-barred appeal.
Whether an appeal is frivolous requires consideration of the following:
(1) A civil appellant has a right to appeal under RAP 2.2; (2) all doubts as to whether the appeal is frivolous should be resolved in favor of the appellant; (3) the record should be considered as a whole; (4) an appeal that is affirmed simply because the arguments are rejected is not frivolous; (5) an appeal is frivolous if there are no debatable issues upon which reasonable minds might differ, and it is so totally devoid of merit that there was no reasonable possibility of reversal.
In re Marriage of Penry, 119 Wn. App. 799, 804 n. 2, 82 P.3d 1231 (2004) (quoting Streater v. White, 26 Wn. App. 430, 434-35, 613 P.2d 187 (1980).
Because Karyn's appeal is so wholly devoid of merit that there was no possibility of reversal on appeal, we grant Jeffrey's request for fees under RAP 18.9 in an amount to be determined by a commissioner of this court.
We deny Karyn's request for attorney fees. RAP 18.1(b).
A majority of the panel having determined that this opinion will now 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, J., and VAN DEREN, J., concur.