                                                                                             FILED
                                                                                      COURT OF APPEALS
                                                                                         DIVISION If
      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                          20140E0 30 API 9: 48
                                                   DIVISION II
                                                                                      STATE OF WASHINGTON,
ANTHONY             J.   BUDZIUS          and    MONICA                                   45275-
BUDZIUS, husband and wife,


                                        Appellants,


          v.



LESLIE D. MILLER fka BUDZIUS,                                                UNPUBLISHED OPINION


                                         Respondent


         MELNICK, J. —        Anthony Budziusl appeals from the trial court' s denial of his complaint to

vacate   an     amendment     to his dissolution decree          with   Leslie Miller.     Budzius argues that the


amended     decree    was   invalid because it    was not a qualified      domestic     relations order ( QDRO), and




Budzius'   s    former attorney lacked authority to         agree   to the      amended   decree.   We disagree and


affirm the trial court.


                                                        FACTS


         Budzius      was married       to Miller for approximately 10           years.   During that time, Budzius

worked     as   a police    officer   in Fife.   He had a Law Enforcement Officers' and Fire Fighters'

Retirement System ( LEOFF) Plan 22 retirement plan with the state.

         Budzius and Miller divorced in November of 1992. The decree of dissolution, as originally

drafted, provided that the value of the community interest in Budzius' s retirement account was
    27,210, and " a Qualified Domestic Relations Order should issue, such that [ Miller] should be

awarded     fifty   percent ( 50   %)   of said $ 27,210. 00."    Ex. 3,   at   4.   Budzius did   not   pay Miller. He




1 Although Budzius' s current wife Monica is also named as an appellant, she was not involved in
the relevant events and will not be discussed further.

2
    RCW 41. 26. 005 -.062, RCW 41. 26. 410 -.921.
45275 -8 -II




understood that at the time ofhis retirement, he would be obligated to pay half of the then -existing

 27, 210 in his     retirement account, or $        13, 605.     Throughout the dissolution proceedings, Joseph


Lombino, attorney at law, represented Budzius.

        In July 1993, Lombino agreed with Miller' s attorney to amend the dissolution decree. The

amended decree awarded Miller a percentage of Budzius' s retirement payments in the event that

Budzius     received periodic    payments.           On the other hand, if Budzius withdrew his retirement


contributions or     became   eligible   for    a   lump   sum   death benefit, Miller   would receive   the $ 13, 605



plus interest. The attorneys signed the order ex parte, allegedly without Budzius' s knowledge or

consent.    Miller' s attorney did     not serve        the   amended   decree   on   Budzius.   The record does not


indicate   whether    Lombino   ever provided a            copy to Budzius.    Miller' s attorney deposed Lombino

in an attempt to ascertain what happened, but Lombino claimed the attorney -client privilege and

did not provide evidence.


        Budzius left his job for       medical reasons           in 2008.   He began receiving retirement benefits

from the    state   in December   of     that   year.      He did not pay Miller anything or inform her of his

retirement.     Because of an error, the state Department of Retirement Systems ( DRS) did not

immediately process the amended decree.

           In 2011, DRS    notified   Budzius that he          owed   Miller approximately $ 600     per month from


his retirement benefits. 3 DRS paid Miller $20, 682. 24 and demanded reimbursement of the same

amount from Budzius. Budzius paid.DRS in full. Until DRS notified him, Budzius did not know

 of any obligation to make periodic payments to Miller. Since 2011, Budzius has continued to pay
Miller $653. 42 per month.




 3 This amount was calculated by dividing Budzius' s 115 months of marriage by his 338 total
 months of state employment and halving that figure, resulting in a community entitlement of
 17. 012 percent of benefits.


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                                             PROCEDURAL HISTORY


         Budzius filed a complaint against Miller to vacate the amended decree and obtain

reimbursement      of   the money       paid   to her from his    retirement   account.   A bench trial ensued.


Budzius' s theory of the case was that the amended decree was not a QDRO because it

fundamentally altered the property distribution under the original decree of dissolution. Budzius

further argued that Lombino had not been authorized to amend the decree on Budzius' s behalf.,

Lombino did not appear or testify at the trial.

         Miller argued at trial that the original decree plainly contemplated a supplemental order,

and the amended decree served as that order. The court agreed and further held that Budzius had

failed to carry his burden        of   proving Lombino had       overreached   his authority. The court entered


judgment in Miller' s favor and declined to adjust the amended decree. Budzius appeals.

                                                     ANALYSIS


         Although the parties raise several issues, the dispositive question in this case is whether

the   amended     decree    was    enforceable.     That question turns on two issues: first, whether the


amended decree was properly qualified as a QDRO, and second, whether the amended decree was

entered with     Budzius'   s   authority.     We hold that the amended decree did qualify as a QDRO and

that Lombino had authority to agree to the amended decree on Budzius' s behalf.

I.       STANDARD OF REVIEW


         We review a trial court' s decision on a motion to vacate a judgment for abuse of discretion.

Haller   v.   Wallis, 89 Wn.2d 539, 543, 573 P. 2d 1302 ( 1978). " A trial court abuses its discretion if


its decision is manifestly        unreasonable or    based   on untenable grounds or untenable reasons."     In


re Marriage ofLittlefield, 133 Wn.2d 39, 46 -47, 940 P. 2d 136 ( 1997).




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II.       QDRO


          Budzius argues that the amended decree could not be considered to be a QDRO, and was


thus ineffective as a modification of the property division in the original decree of dissolution. We

disagree.


          QDROs exist under federal law and are a means to implement a court order entered in a

domestic       relations case.     Budzius argues that a QDRO may never " alter or amend the substantive

provisions of       the decree."    Br. of Appellant at 13 ( citing Gainous v. Gainous, 219 S. W.3d 97, 107

 Tex.              2006)).    Budzius fails to                 any Washington law for his              proposition.      In fact,
        App.                                      provide




Budzius'                                    the    plain      language     of   the        QDRO      statute,    29   U. S. C. §
               s   theory    contravenes




1056( d)( 3)( B)( i).       That statute defines a QDRO as " a domestic relations order (I) which creates or

recognizes the existence of an alternate payee' s right to, or assigns to an alternate payee the right

to,   receive all or a portion of      the benefits      payable with respect         to   a participant under a plan."        29


U. S. C. § 1056( d)( 3)( B)( i) ( emphasis        added).




          A QDRO is subject to the following statutory requirements:

          1.          It creates or recognizes an alternate payee' s right to receive all or a portion of a


participant' s       benefits     payable   under       the   plan.      I.R. C. §         414( p)( 1)( A)(i);   29   U.S. C. §


 1056( d)( 3)( B)( i)(I).


          2.          It is a judgment, decree, or order relating to the provision of child support, alimony

payments, or marital property rights of a spouse, former spouse, child, or other dependent of a

participant, and       that is   made pursuant     to   a state   domestic   relations      law. I. R. C. § 414( p)( 1)( B); 29


U. S. C. § 1056( d)( 3)( B)( ii).


          3.          It states the name and last known mailing address of the participant and of each

 alternate payee.       I.R.C. § 414( p)( 2)( A); 29 U. S. C. § 1056( d)( 3)( C)( i). However, the QDRO will




                                                                  4
45275 -8 -II




not fail to be qualified " merely because the [ QDRO] does not specify the current mailing address

of the participant and alternate payee if the plan administrator has reason to know that address

independently        of the   [ QDRO]."          S. Rep. No. 98 -575, P.L. 98 -397, reprinted in 1984 U.S. C. C. A.N.

2547, 2566.


        4.           It states the amount or percentage of participant' s benefit payable to each alternate

payee, or    the   manner     in   which   the   amount or percentage     is to be determined. I.R. C. §   414( p)( 2)( B);

29 U.S. C. § 1056( d)( 3)( C)( ii).


        5.           It sets forth the number of payments or the period over which the plan must make


payments     to    the   alternate   payee. I.R.C. § 414( p)( 2)( C); 29 U. S. C. § 1056( d)( 3)( C)( iii).


        Here, all five elements of a QDRO are met. The amended decree creates a right for Miller

to receive a portion of Budzius' s benefits payable under the retirement plan. The amended decree

relates to Miller' s marital property rights in Budzius' s retirement account, and it was made

pursuant to a state domestic relations law. The amended decree states the names of the participant

 Budzius)      and   the   alternate payee (        Miller),   and although it does not state Budzius' s and Millers'

            addresses,      DRS knew how to             contact    them; in fact, DRS   contacted   both    parties.   The
mailing


amended decree stated the manner in which the percentage due to Miller would be calculated.

           the                 decree            forth the   period over which   DRS   was   to pay Miller —as     long as
Finally,           amended                 set




Budzius was receiving payments. We hold that the amended decree was a QDRO.




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45275 -8 -II



III.       AUTHORITY TO ENTER AMENDED DECREE


           Budzius argues that his prior attorney impermissibly surrendered a substantial right of

Budzius' s when the attorney consented to the amended decree. Miller argues that because Budzius

designated attorney Lombino to represent him, the court and the parties were entitled to rely on

Lombino' s authority. Accordingly, Miller argues that Budzius failed to meet the requirements to

vacate a judgment. We agree with Miller and affirm the trial court.


           Generally, if an attorney is authorized to appear, that attorney' s acts are binding on the

client.   Haller, 89 Wn.2d      at   547. But the attorney' s ability to bind the   client   is limited: " an attorney


is without authority to surrender a substantial right of a client unless special authority from his
client    has been   granted   him to do   so."   Graves v. P.J. Taggares, Co., 94 Wn.2d 298, 303, 616 P. 2d

1223 ( 1980) ( quoting 30 A.L. R.2d 944, 947, § 3 ( 1953)).


           Here, the trial court found that Lombino remained as Budzius' s attorney throughout the

relevant period. While Budzius challenges this finding of fact, we will uphold challenged findings

as verities on appeal      if they     are supported   by   substantial   evidence.   In re Estate of Jones, 152

Wn.2d 1,       8, 93 P. 3d 147 ( 2004).      Substantial evidence is evidence sufficient to persuade a fair -

minded person of the truth of the declared premises. Pilchuck Contractors, Inc. v. Dept. ofLabor

       Indus., 170 Wn.    App.    514, 517, 286 P. 3d 383 ( 2012).         Here, Lombino represented Budzius


during the divorce proceedings and continued to represent him with regard to child support. This
is sufficient evidence to persuade a fair -minded person that Lombino was authorized to appear for

Budzius, even if he was allegedly unauthorized to enter a specific order. We rule that the finding

that Lombino was Budzius' s attorney is a verity on appeal.




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45275 -8 -II




          Here, Budzius testified that he never gave Lombino authority to amend the decree of

dissolution. Accordingly, we must determine whether Lombino' s action surrendered a " substantial

right" of Budzius' s.


          Substantial      rights     may be      compromised         by " surrendering property without securing a

rescission of     the   contract ...         settlement of a   tort   cause of action ...    not recording the testimony

necessary for      review    in   a   parental deprivation proceeding ...           stipulating to a contingent consent

judgment ... [      or]   stipulating that the      client   is mentally ill   without a    hearing."   Graves, 94 Wn.2d


at   304 -05;   see also   Morgan       v.   Burks, 17 Wn.     App.     193, 195, 563 P. 2d 1260 ( 1977); Grossman v.


Will, 10 Wn.       App.    141, 144, 516 P. 2d 1063 ( 1973).             Graves itself involved particularly egregious

facts, in which the attorney failed to appear for a summary judgment hearing, failed to provide any

evidence at trial, and failed to advise the client of a $ 131, 200 memorandum order against the client.

94 Wn.2d at 299 -300.


          Here, Lombino did not dispose of a claim of Budzius' s, as occurred in Morgan or

Grossman. Nor did Lombino fail to                    appear,   like in Graves.     Budzius had already agreed to pay

Miller, and the court merely clarified the means by which the agreed -upon payment would be

made. Significantly, the original dissolution decree contemplated the entry of a supplemental order

to address Budzius' s payment.


          While the QDRO may have required Budzius to pay more money than was contemplated

in the original decree, the amount Miller received from Budzius' s periodic payments was directly

proportionate to contributions Budzius made to his retirement plan while he was married to Miller.

Furthermore, Budzius had ample opportunity to pay the amount owed in the decree and never did

so of    his    own volition.     While reasonable people could disagree as to whether the new payment


 scheme deprived Budzius of a substantial right, the trial court' s refusal to upset a 20- year -old




                                                                  7
45275 -8 -II




decree   was not an untenable         decision.     The trial court did not abuse its discretion by ruling that

Lombino' s acquiescence was not sufficient grounds to vacate the amended decree.

         Budzius raises two other challenges that we reject. First, Budzius argues that he was never


given his constitutionally guaranteed right to adequate notice and opportunity to be heard before

the amended decree was enforced against him. This argument fails under Haller, which holds that


 notice to a client that his attorney is making application to the court for some action on its part,

is not a requirement of court rule and there has been no showing that it is a requirement of due

process."      89 Wn.2d at 547.


          Second, Budzius argues that the amended decree may be vacated notwithstanding the

passage of time because it was void. However, voidness is narrowly defined for CR 60 purposes.

It is   not   enough   that the   order   be   erroneous —   to be void, the order must actually exceed the

 inherent     power of    the   court."   Metro. Fed. Say. &     Loan Ass 'n of Seattle v. Greenacres Mem' l

Ass' n, 7 Wn.     App.    695, 699, 502 P. 2d 476 ( 1972).       This means that " a court enters a void order


only    when   it lacks   personal   jurisdiction   or subject matter   jurisdiction   over   the   claim."   Marley v.


Dep' t   of Labor & Indus., 125 Wn.2d 533, 541,
                                                886 P. 2d 189 ( 1994);                 see also In re Marriage of

Schneider,. 173 Wn.2d 353, 360, 268 P. 3d 215 ( 2011);              Kingery    v.   Dep' t   of Labor & Indus., 132


Wn.2d 162, 170, 937 P. 2d 565 ( 1997).              As a matter of law, Budzius cannot establish the absence


of either personal     jurisdiction    or subject matter   jurisdiction. Rather, "[    i]f an attorney is authorized

to appear, the jurisdiction over the defendant is perfect, and the subsequent action of the attorney,




                                                             8
45275 -8 -II




not   induced by the fraud       of the adverse   party, is   binding   on   the   client at   law   and   in equity." Haller,


89 Wn.2d        at   547 ( quoting 3 E. Tuttle, A TREATISE           OF THE   LAW     OF   JUDGMENTS §          1252, at 2608


 5th   ed. rev.      1925)).   Because Budzius does not show that Miller committed fraud, his voidness

argument fails.


          Although Lombino may have acted against Budzius' s interest when he entered into the

amended decree, the court and Miller were authorized to rely on Lombino' s representation of

Budzius,    and      Lombino'    s acts will   be imputed to Budzius.          Budzius is free to pursue a remedy

against Lombino for exceeding his authority, but he has failed to show that the trial court abused

its discretion by declining to vacate the amended decree. We affirm the trial court.

IV.       ATTORNEY FEES


          Both parties request reasonable attorney fees if they are successful. Miller argues that she

is   entitled   to fees because Budzius'       s appeal   is frivolous. Although we agree with Miller on the


merits, we decline to award fees.

          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. "'      Tiffany Family Trust Corp. v. City ofKent, 155 Wn.2d 225, 241, 119 P. 3d 325 ( 2005)
                                        Coll. Dist. No. 10          Higher Educ. Pers. Bd., 107 Wn.2d 427, 443,
 quoting Green River            Cmty.                          v.




730 P. 2d 653 ( 1986)).         All doubts as to whether an appeal is frivolous should be resolved in favor

of the appellant. Tiffany, 155 Wn.2d at 241. Resolving all doubts in Budzius' s favor, we rule that
his    arguments —while not         convincing —are       not frivolous either. Budzius' s position arguably has

 support in Graves. Accordingly, we deny Miller' s request for reasonable attorney fees.




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45275 -8 -II




        We affirm the trial court.


        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.




We concur:




          1 orgen., A.C. J.




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