                                                                           FILED 

                                                                        June 30, 2015 

                                                               In the Office of the Clerk of Court 

                                                             W A State Court of Appeals, Division III 





           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                              DIVISION THREE 


In re the Marriage of:                       )        No. 32832-5-111
                                             )
HOllY PERSINGER,                             )
                                             )
                     Respondent,             )
                                             )
              v.                             )        PUBLISHED OPINION
                                             )
MARC PERSINGER,                              )
                                             )
                     Appellant.              )

       BROWN, J. - Marc Persinger appeals the dissolution court's ruling denying his

CR 60(b)(5) motion to vacate its decree awarding 50 percent of Mr. Persinger's pending

Department of labor and Industries (l&l) settlement to Holly Tatum (formerly known as

Persinger). Because the transfer is void under RCW 51.32.040(1), we reverse and

remand with instructions to vacate that portion of the decree purporting to assign to Ms.

Tatum part of Mr. Persinger's l&1 compensation award, with leave to reconsider the

overall property division.

                                         FACTS

       Mr. Persinger and Ms. Tatum married in 1991 and dissolved their marriage in

2013. In their pro se dissolution action, the parties submitted an agreed proposed
    No. 32832-5-111
    In re Marriage of Persinger


    division of assets and liabilities. The court entered a decree of dissolution, accepting

    their agreement. Exhibit A to the decree set forth the parties' division of property and

    stated that each would receive "50% of L&I settlement and or pension." Clerk's Papers

    (CP) at 32. During the dissolution, Mr. Persinger was in the midst of a workers

    compensation settlement dispute with L&I regarding benefits related to a 2007 injury.

    After dissolution, the Board of Industrial Insurance Appeals found Mr. Persinger was

    "permanently totally disabled" and was entitled to disability compensation. CP at 56.

    Mr. Persinger asked his industrial insurance appeals attorney about Ms. Tatum's share


I   of the L&I settlement and was advised to consult a family law attorney because the



I   portion of the decree awarding her 50 percent ot'the settlement may not be valid.

           On August 21, 2014, Mr. Persinger filed a CR 60(b)(5) motion to vacate the



I   decree, arguing the award to Ms. Tatum of L&I benefits was void. Ms. Tatum

    responded with a motion for contempt and other post-decree relief. The court denied

I   Mr. Persinger's CR 60(b)(5) motion concerning the L&I benefits and found him in

    contempt of the 2013 decree. Mr. Persigner appealed.

                                           ANALYSIS

           The issue is whether the trial court erred in denying Mr. Persigner's CR 60(b)(5)

    motion to vacate. Mr. Persigner contends the provision in the parties' decree relating to

    the equitable division of L&I benefits is void under RCW 51.32.040(1).

           We review a CR 60(b) motion for abuse of discretion. Haley v. Highland, 142

    Wn.2d 135, 156, 12 P.3d 119 (2000). "A trial court abuses its discretion if its decision is



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In re Marriage of Persinger


manifestly unreasonable or based on untenable grounds or untenable reasons." In re

Marriage ofUtt/efield, 133 Wn.2d 39, 46-47,940 P.2d 1362 (1997). Our review of a CR

60(b) decision is limited to the trial court's decision, not the underlying order the party

seeks to vacate. Bjurstrom v. Campbell, 27 Wn. App. 449, 450-51,618 P.2d 533

(1980). CR 60(b)(5) mandates the court vacate a void judgment upon motion of a party,

irrespective of the lapse of time. In re Marriage of Leslie, 112 Wn.2d 612, 618-19, 772

P.2d 1013 (1989).

       Under the Industrial Insurance Act, chapter 51.32 RCW, a worker may not

voluntarily assign any compensation benefits to another person. RCW 51.32.040(1).

Any such transfer is void. In re Marriage of Dugan-Gaunt, 82 Wn. App. 16, 19,915

P.2d 541 (1996) (citing RCW 51.32.040(1)); see a/so A. Larson, Workers'

Compensation Law, § 2.60 (1989) (claimant's lack of ownership in benefits seen as

inability to assign benefits). Mr. Persigner argues this statute voids the portion of the

parties' decree relating to compensation benefits. Statutory interpretation is a question

of law, that we review de novo. Lake    v. Woodcreek Homeowners Ass'n, 169 Wn.2d
516, 526, 243 P.3d 1283 (2010). The purpose of statutory interpretation is to determine

and give effecUo the legislature's intent. Id. To determine legislative intent, we first

look to the statute's plain language. Dep't of Ec%gy v. Campbell & Gwinn, L.L.C., 146

Wn.2d 1, 9-10,43 P.3d 4 (2002).

       RCW 51.32.040(1) states, "No money paid or payable under this title shall,

before the issuance and delivery of the payment, be assigned, charged, or taken in



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       In re Marriage of Persinger


       execution, attached, garnished, or pass or be paid to any other person by operation of

       law, any form of voluntary assignment, or power of attorney." The question of whether

       this statute prohibits assignments in dissolution proceedings has been asked, and

       answered, in In re Marriage of Dugan-Gaunt, 82 Wn. App. 16.

              In In re Marriage of Dugan-Gaunt, the parties' dissolution decree awarded the


I      wife "40 percent of any future workers compensation settlement from an on-the-job



I      injury." 82 Wn. App. at 18. On modification, the court ordered the settlement to be

       allocated, "first, to Arlynda Dugan Gaunt, the sum of $2,311.64 shall be paid; of the

II 
   remainder, 40% shall be paid to Arlynda Dugan Gaunt, and the remainder to Chris Fred


I      Gaunt." Id. Mr. Gaunt unsuccessfully requested the court vacate the modification

       order. On appeal, Division Two of this court held, "Chris's compensation benefits were

       not before the court in the dissolution .... The decree, therefore, cannot be used to

       overcome the clear statutory language prohibiting the transfer of workers' compensation

       benefits. RCW 51.32.040." Id. at 19-20. The Dugan-Gaunt court, therefore, held the

       trial court abused its discretion in denying the motion to vacate.

              Mr. Persigner correctly argues his case is analogous to In re Marriage of Dugan-

       Gaunt. Both Mr. Persigner and Mr. Gaunt suffered on the job injuries and were waiting

       to settle their claims at the time of divorce. Neither party had an ownership interest in

       the benefits to grant the court the authority to assign the benefits. Ms. Tatum

       unpersuasively asserts because payment would not be made directly to her, it would

       first go to Mr. PerSinger, then RCW 51.32.040(1) does not apply. First, payments did



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In re Marriage of Persinger


not go directly to the wife in In re Marriage of Dugan-Gaunt. Second, a court order

awarding a portion of compensation benefits to another party, whether directly or

indirectly, violates RCW 51.32.040(1}'s clear mandate, "no money paid or payable

under this title shall, ... be assigned, charged, or taken in execution, attached,

garnished, or pass or be paid to any other person by operation of law[.]"

       Additionally, in Clingan v. Department of Labor and Industries, 71 Wn. App. 590,

593-94,860 P.2d 417 (1993), the wife sought an industrial insurance surviving spouse

benefit under RCW 51.32.050(6), claiming because her dissolution decree had been set

aside nunc pro tunc after the death of her ex-husband, she was still his spouse and

entitled to benefits. L&I denied the claim. Division One of this court affirmed the denial

of benefits, finding that the court that entered the nunc pro tunc order was without

jurisdiction and that the order was therefore void. The court noted there was no "benefit

to distribute at the time of entry of the decree and property settlement, so the

instruments' failure to address that asset could not have been error." Id. at 593-94.

Citing RCW 51.32.040, the court continued, "At the time of the dissolution, Mrs. Clingan

did not have a right to receive a portion of Mr. Clingan's pension because it was a

statutory entitlement personal to him and could not be divided in a property settlement."

Id. at 594. Lastly, the court stated, "In fact, had Mr. Clingan's right to receive the

pension been apportioned according to community property tenets or by agreement of

the parties, that division would have been void." Id.




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        Based on both the plain language of RCW 51.32.040 and relevant case law, Ms.

Tatum did not have a right to receive a portion of Mr. Persinger's L&I benefits because it

was a statutory entitlement personal to him. Thus, that portion of the parties' property

distribution is void under RCW 51.32.040(1). Accordingly, it was an abuse of discretion

for the trial court to deny Mr. Persinger's motion to vacate.

       We note while an assignment of compensation benefits is void under RCW

51.32.040(1), the statute does not expressly limit a court's ability to take into account

such benefits in making a just and equitable property division. See In re Marriage of

Zahm, 138 Wn.2d 213, 222, 978 P.2d 498 (1999) ("while the anti-reassignment clause

of the Social Security Act precludes a trial court from directly dividing social security

income in a divorce action, a trial court may still properly consider a spouse's social

security income within the more elastic parameters of the court's power to formulate a

just and equitable division of the parties' marital property.")

       Lastly, Ms. Tatum argues if we reverse the trial court's ruling, then we must order

modification of the decree. But, our review is limited to the trial court's decision, not the

underlying order that the party seeks to vacate. Bjurstrom, 27 Wn. App. at 450-51. Any

further relief is left to the parties in the dissolution court.




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      Reversed. Remanded for proceedings consistent with this opinion.




                                              Brown, J.
WE CONCUR: 





Siddoway, C.J.




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