                                                                                            Filed
                                                                                      Washington State
                                                                                      Court of Appeals
                                                                                       Division Two

                                                                                       April 28, 2020




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
    In the Matter of the Marriage of:                              No. 52280-2-II

    REBECCA SCHIFFMAN
    (f.k.a REBECCA RIGHTMYER),

                                  Respondent,

           v.

    CHRISTOPHER RIGHTMYER,                                   UNPUBLISHED OPINION

                                  Appellant.

          LEE, C.J. — Christopher Rightmyer appeals the superior court’s order granting Rebecca

Schiffman’s (formerly Rightmyer) motion to vacate their dissolution decree. Rightmyer presents

four arguments why the superior court erred. First, Rightmyer argues that the superior court

abused its discretion by finding that Rightmyer waived his retirement benefits. Second, Rightmyer

argues that the superior court improperly used CR 60(b)(6) to grant Schiffman affirmative relief.

Third, Rightmyer argues that the superior court erred in equating the Howell1 decision with a

change in the law. Fourth, Rightmyer argues that the superior court erred because Washington

law favors amicable agreements.




1
    Howell v. Howell, 137 S. Ct. 1400, 197 L. Ed. 2d 781 (2017).
No. 52280-2-II


       We agree that the superior court misapplied the law by equating the Howell decision with

a change in the law. Accordingly, we reverse.

                                           FACTS

       Schiffman and Rightmyer were married for 15 years. In 2016, the superior court entered a

divorce decree dissolving the parties’ marriage. The decree contained the following provision

regarding Rightmyer’s military pension,

       The former spouse is awarded a percentage of the member’s disposable military
       retired pay, to be computed by multiplying 50% times a fraction, the numerator of
       which is 171 months of marriage during the member’s creditable military service,
       divided by the member’s total number of months of creditable military service. If
       DFAS [Defense Finance and Accounting Service] cannot pay the wife directly, the
       husband shall pay this amount directly to the wife each month, along with a copy
       of the statement from DFAS.

Clerk’s Papers (CP) at 13.

       Two years later, Schiffman filed a CR 60 motion to vacate the divorce decree.2 To support

her motion, Schiffman stated that, after Rightmyer retired in 2017, she completed the necessary

paperwork to receive her portion of Rightmyer’s retirement pay. However, DFAS informed

Schiffman that her application for a portion of Rightmyer’s retirement could not be approved

because,

               The entire amount of the member’s retired/retainer pay is based on
       disability, thus there are no funds available for payment under the USFSPA
       [Uniformed Services Former Spouses’ Protection Act].




2
  Schiffman also moved to modify spousal maintenance. The motion to modify maintenance was
denied. Schiffman does not cross-appeal this order or argue for review under RAP 2.4.


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No. 52280-2-II


CP at 36. Schiffman argued that because she would not be able to receive any portion of

Rightmyer’s retirement pay, as provided for in the decree, the decree was no longer just and should

be vacated.

       Rightmyer responded to Schiffman’s motion, explaining that his retirement from the

military was a medical retirement resulting from the military’s determination that he was

permanently disabled. He also stated that it was unforeseen that the military would medically

retire him several years before he would have chosen to retire. Rightmyer’s certificate of discharge

identified the reason for separation as “disability, permanent (enhanced).” CP at 50 (capitalization

omitted). The Department of Veteran Affairs determined that Rightmyer was 100 percent disabled

and is totally and permanently disabled due to service-connected disabilities.

       A superior court commissioner found,

       CR 60(b)(6) applies as the decree is no longer equitable as the specific provision
       providing for the wife’s marital share of the husband’s military retirement is no
       longer enforceable due to a change in the law.

CP at 54. The commissioner determined that no other provisions of CR 60(b) applied. The

commissioner’s order vacated the property division portions of the dissolution decree and ordered

the parties to obtain a new settlement conference.

       Rightmyer moved to revise the commissioner’s ruling. The superior court made the

following findings of fact on the motion to revise:

       A) The initial moving papers set forth different sections of CR 60(b), but the focus
          was on CR 60(b)(6).
       B) The parties were married for 15 years [and] Mr. Rightmyer was in the military
          for 26 years.
       C) Ms. Schiffman was supposed to receive her marital share of Mr. Rightmyer’s
          military account.
       D) Mr. Rightmyer converted his retirement to disability pay.



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No. 52280-2-II


       E) Subsequent to the decree, the U.S. Supreme Court decided the Howell case.

CP at 115. The superior court elaborated on its analysis in its oral ruling:

       Mr. Rightmyer, if the Court were to deny this request to set aside, I think, frankly,
       would have a windfall that neither party contemplated at the time they entered into
       their agreement.
               The Court’s responsibility under [RCW] 26.09.080 is to enter orders that
       are fair and equitable to both of the parties. If the Court did not affirm the
       Commissioner today, the decree wouldn’t be fair and equitable to both of the
       parties. It would be fair to Mr. Rightmyer, but Ms. Schiffman would not be
       receiving the benefit of what she bargained for and what the parties both
       contemplated in the decree.
               I am mindful of the requirements of Howell. I think that the Howell decision
       gives state courts the ability to do what they need to do in cases such as this, and to
       the limited extent of the property division, the Court is going to allow the parties to
       move forward. I am not revising the Commissioner. I think she made an
       appropriate decision.

Verbatim Report of Proceeding at 16. The superior court affirmed the commissioner’s order

vacating the property division portions of the dissolution decree and ordering the parties to obtain

a new settlement conference.

       Rightmyer appeals.

                                            ANALYSIS

       Rightmyer presents four arguments why the superior court erred. First, Rightmyer argues

that the superior court abused its discretion by finding that Rightmyer waived his retirement

benefits. Second, Rightmyer argues that the superior court improperly used CR 60(b)(6) to grant

Schiffman affirmative relief. Third, Rightmyer argues that the superior court erred in equating the

Howell decision with a change in the law. Fourth, Rightmyer argues that the superior court erred

because Washington law favors amicable agreements.




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No. 52280-2-II


A.     STANDARD OF REVIEW

       Rightmyer appeals from the superior court’s order denying his motion to revise the

commissioner’s order. “When an appeal is taken from an order denying revision of a court

commissioner’s decision, we review the superior court’s decision, not the commissioner’s.”

Williams v. Williams, 156 Wn. App. 22, 27, 232 P.3d 573 (2010).

       We review orders on CR 60(b) motions to vacate for an abuse of discretion. Persinger v.

Persinger, 188 Wn. App. 606, 608, 355 P.3d 291 (2015). A superior court abuses its discretion

“‘if its decision is manifestly unreasonable or based on untenable grounds or untenable reasons.’”

Id. at 609 (quoting In re Marriage of Littlefield, 133 Wn.2d 39, 46-47, 940 P.2d 1362 (1997)). A

superior court also abuses its discretion when it bases its decision on an erroneous view of the law.

Mayer v. Sto Indus., Inc., 156 Wn.2d 677, 684, 132 P.3d 115 (2006).

       CR 60(b)(6) allows relief from judgment when “it is no longer equitable that the judgment

should have prospective application.” CR 60(b)(6) allows the superior court to address problems

when a judgment has a continuing effect and “‘a change in circumstances after the judgment is

rendered makes it inequitable to enforce the judgment.’” Pac. Sec. Companies v. Tanglewood,

Inc., 57 Wn. App. 817, 820, 790 P.2d 643 (1990) (quoting Metropolitan Park Dist. v. Griffith, 106

Wn.2d 425, 438, 723 P.2d 1093 (1986)).

B.     HOWELL AS A CHANGE IN LAW

       Rightmyer argues that the superior court erred by determining that Howell was a change in

the law that altered the terms of the dissolution decree. We agree.

       Here, the superior court interpreted the military retirement distribution provision in the

dissolution decree to mean that Rightmyer was required to pay Schiffman the amount of his



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No. 52280-2-II


retirement she was awarded regardless of whether that amount was partially disability. The

superior court also appears to have interpreted Howell as a change in the law that now specifically

prohibits this type of indemnification. Therefore, the superior court determined that the military

retirement distribution provision could not be enforced, rendering the dissolution decree

inequitable.     This determination was incorrect both because it is based on an improper

interpretation of the military retirement distribution provision in the dissolution decree and because

Howell did not change the law.

       1.        Legal Principles

       The division of assets resulting from military benefits is preempted by federal law. Howell

v. Howell, 137 S. Ct. 1400, 1403-04, 197 L. Ed. 2d 781 (2017). Under federal law, “disposable

retired pay” may be divided by courts between a military member and a former spouse. Id. at

1403; 10 U.S.C. §1408(c). However, “disposable retired pay” specifically excludes amounts that

are deducted “as a result of a waiver of retired pay required by law in order to receive compensation

under title 5 or title 38.” 10 U.S.C. §1408(a)(4)(A)(ii). Therefore, amounts that are deducted to

receive disability compensation under Title 5 or Title 38 are not distributable to former spouses.

Howell, 127 S. Ct. at 1404. “Disposable retired pay” also excludes amounts paid under chapter

61, which governs retirement or separation due to disability. 10 U.S.C. §1408(a)(4)(A)(iii).

       In Howell, the wife received 50 percent of the husband’s retirement payment. 137 S. Ct.

at 1404.       When the husband’s retirement began, the husband’s retirement payment was

approximately $1,500. Id. 13 years later, the husband waived a portion of the retirement in order

to receive disability benefits. Id. As a result, the wife’s payments were reduced by approximately

$125. Id. The Arizona court ordered the husband to “ensure that [the wife] ‘receive her full 50%



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No. 52280-2-II


of the military retirement without regard for the disability.’” Id. (quoting App. Pet. for Cert. 28a.).

The United States Supreme Court reversed the state court based on its prior decision in Mansell v.

Mansell, 490 U.S. 581, 109 S. Ct. 2023, 104 L. Ed. 2d 675 (1989). Id.

       The US Supreme Court explained that, when a property distribution provision distributes

retirement pay prior to the military member’s retirement, that provision is based on the future

contingency that some or all of that award can be reduced by disability benefits. Id. at 1405 (“The

existence of that contingency [that retirement will be reduced by disability] meant that the value

of [the wife’s] share of military retirement pay was possibly worth less—perhaps less than [the

wife] and others thought—at the time of the divorce.”). Therefore, any order requiring payment

of an amount that is reduced is an order requiring payment of the portion of benefits that was

expressly prohibited by Congress. Howell, 137 S. Ct. at 1405. The Supreme Court stated,

               We recognize, as we recognized in Mansell, the hardship that congressional
       pre-emption can sometimes work on divorcing spouses. 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 support.

Id. at 1406 (citation omitted). However, because the state court decision rested “entirely upon the

need to restore [the wife’s] lost portion,” the Supreme Court held it must be reversed. Id.

       We review an interpretation of a dissolution decree de novo. In re Marriage of Thompson,

97 Wn. App. 873, 877, 988 P.2d 499 (1999). If a provision in a dissolution decree is unambiguous,

there is nothing for the court to interpret. In re Marriage of Bocanegra, 58 Wn. App. 271, 275,

792 P.2d 1263 (1990). A writing is ambiguous if is it subject to two different, reasonable

interpretations. McDonald v. State Farm Fire & Cas. Co., 119 Wn.2d 724, 733, 837 P.2d 1000




                                                  7
No. 52280-2-II


(1992). If the provision is ambiguous, we apply rules of interpretation and construction applicable

to statutes, contracts, and other writings to ascertain intent. Thompson, 97 Wn. App. at 878.

       2.      Military Retirement Distribution Provision

       The provision distributing Rightmyer’s military retirement stated,

       The former spouse is awarded a percentage of the member’s disposable military
       retired pay, to be computed by multiplying 50% times a fraction, the numerator of
       which is 171 months of marriage during the member’s creditable military service,
       divided by the member’s total number of months of creditable military service. If
       DFAS cannot pay the wife directly, the husband shall pay this amount directly to
       the wife each month, along with a copy of the statement from DFAS.

CP at 13. This provision specifically divides only disposable military retired pay, which, even at

the time of the dissolution, specifically excluded amounts based on disability pay. The provision

further states that if DFAS cannot pay Schiffman directly, the husband shall pay “this amount.”

But “this amount” references the amount of the disposable military retired pay, not the total amount

of benefits Rightmyer receives. And nothing in the language references DFAS not paying because

of reductions due to disability payments. Instead, the language references the inability to make

direct payments, which could be for any number of reasons including administrative delays or

Schiffman’s failure to complete the appropriate paperwork. Therefore, the language in the decree

is not ambiguous and does not require further interpretation.

       Based on the language of the military retirement distribution provision, Schiffman was

entitled to, and the superior court divided, nothing more than Rightmyer’s disposable retired pay,

which by federal law did not include any amounts waived or based on disability. And the provision

requiring Rightmyer to pay Schiffman directly is only in the event DFAS cannot pay the amount

of disposable retired pay to Schiffman directly. Because the military retirement distribution




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No. 52280-2-II


provision in the decree did not require Rightmyer to indemnify Schiffman for any disability related

reductions in retirement pay, Howell did nothing to change the provision or the terms of the decree.

Accordingly, the superior court misapplied the law and abused its discretion by concluding that

Howell was a change in the law that altered the terms of the property distribution provision. We

reverse the order granting the CR 60(b)(6) motion to vacate.3

                                APPELLATE ATTORNEY FEES

       Schiffman requests attorney fees on appeal under RAP 18.1, RCW 26.09.140, and RAP

18.9. We deny Schiffman’s request for attorney fees on appeal.

       RAP 18.1(1)(a) provides that we may grant attorney fees “[i]f applicable law grants to a

party the right to recover reasonable attorney fees or expenses on review before either the Court

of Appeals or Supreme Court.” RCW 26.09.140 allows for the appellate court to award attorney

fees on appeal.

       RCW 26.09.140 provides,

               The court from time to time after considering the financial resources of both
       parties may order a party to pay a reasonable amount for the cost to the other party
       of maintaining or defending any proceeding under this chapter and for reasonable
       attorneys’ fees or other professional fees in connection therewith, including sums
       for legal services rendered and costs incurred prior to the commencement of the
       proceeding or enforcement or modification proceedings after entry of judgment.
               Upon any appeal, the appellate court may, in its discretion, order a party to
       pay for the cost to the other party of maintaining the appeal and attorneys’ fees in
       addition to statutory costs.

An award of attorney fees under RCW 26.09.140 is based on consideration of “‘the parties’ relative

ability to pay’” and “‘the arguable merit of the issues raised on appeal.’” In re Marriage of



3
 Because we reverse based on the superior court’s abuse of discretion by misapplying the law,
we do not reach Rightmyer’s other arguments raised on appeal.


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No. 52280-2-II


Muhammed, 153 Wn.2d 795, 807, 108 P.3d 779 (2005) (quoting In re Marriage of Leslie, 90 Wn.

App. 796, 807, 954 P.2d 330 (1998)).

        Here, Rightmyer’s monthly income4 is greater than Schiffman’s. However, Rightmyer also

has significantly more debt and expenses than does Schiffman. Although Rightmyer’s income is

higher than Schiffman’s, because of the disparity in expenses, the parties’ ability to pay is

approximately the same.      Also, Rightmyer, not Schiffman, prevails on appeal; therefore,

Rightmyer has raised an issue on appeal that has arguable merit. Id. Accordingly, we deny

Schiffman’s request for attorney fees under RAP 18.1 and RCW 26.09.140.

        Schiffman also requests attorney fees under RAP 18.9 for responding to a frivolous appeal.

RAP 18.9 allows this court to order payment of attorney fees as a sanction for filing a frivolous

appeal. “‘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

success.’” Robinson v. American Legion Dep’t of WA, Inc., 11 Wn. App. 2d 274, 298, 452 P.3d

1254 (2019) (alteration in original) (internal quotation marks omitted) (quoting In re Recall of

Feetham, 149 Wn.2d 860, 872, 72 P.3d 741 (2003). Because we reverse the superior court, the

appeal obviously was not frivolous. Accordingly, we deny the request for attorney fees under RAP

18.9.




4
  Rightmyer did not request attorney fees on appeal; therefore, his financial declaration in answer
to Schiffman’s affidavit of financial need was timely filed under RAP 18.1(c).


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No. 52280-2-II


        We reverse.

        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 in accordance with RCW 2.06.040,

it is so ordered.



                                                    Lee, C.J.
 We concur:



 Worswick, J.




 Melnick, J.




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