                                                                           FILED
                                                                     APRIL 11, 2017
                                                              In the Office of the Clerk of Court
                                                             WA State Court of Appeals, Division Ill




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

In the Matter of the Marriage of             )
                                             )        No. 33878-9-111
SHARON TAYLOR,                               )
                                             )
                    Appellant,               )
                                             )
       V.                                    )        UNPUBLISHED OPINION
                                             )
FRANK TAYLOR,                                )
                                             )
                    Respondent.              )

       FEARING, C.J. -   Sharon Radovich, formerly Sharon Taylor, appeals an order

clarifying the distribution of her former husband's retirement benefit. Frank Taylor and

she maintained their matrimony for thirteen years while he worked for the Douglas

County Public Utility District (PUD). Dissolution ended their union in 1985, but Taylor

continued to work at the PUD until 2014. The divorce decree awarded Radovich "[o]ne

half of Respondent's [Frank Taylor's] retirement benefits for 13 years." Clerk's Papers

(CP) at 13.
No. 33878-9-111
In re Marriage of Taylor


       At Frank Taylor's request, the trial court granted Radovich payment for the rest of

her life based on the monthly retirement benefit that Taylor would have garnered if he

only worked thirteen years with the Douglas County PUD. Radovich sought distribution

of half of the amount Frank Taylor receives from the Department of Retirement Systems

(DRS) over thirteen years during the first thirteen years of Taylor's retirement. We

disagree with both parties and award Radovich recovery based on Court of Appeals

precedent. We divide the number thirteen by the number of years Taylor worked at the

PUD, divide the remainder by two, and multiply that remainder by Taylor's monthly

retirement benefits.

                                           FACTS

       Sharon Radovich and Frank Taylor married on July 6, 1962. On November 2,

1970, Frank enrolled in the Public Employees Retirement System, Plan 1 (hereafter

"PERS l ") through his work for Douglas County Public Utility District. While Frank

still worked at the utility district, the Taylors separated on October 1, 1983.

       On July 3, 1984, Sharon Radovich petitioned the superior court to dissolve the

couple's irretrievably broken union. The petition, acknowledged by Taylor and

Radovich, provided:

              We have agreed that our property will be divided as follows:
              1. Home to Respondent [Frank Taylor], with a $11,250 lein [sic] to
       Petitioner [Sharon Radovich] which shall become due upon sale of said
       home or in 10 years, whichever occurs first.



                                              2
No. 33878-9-III
In re Marriage of Taylor


              2. Household goods of furniture, half to Respondent and half to
       Petitioner.
              3. Retirement Benefits, Douglas County P.U.D. Half to Petitioner
       for 13 years after Respondent retires.

CP at 3. The Taylors did not enter a written separation agreement, and neither hired an

attorney for the divorce.

       The superior court entered a dissolution decree on May 21, 1985. The decree

provided:

               (7) PETITIONER'S PROPERTY. The following property is the
       sole and separate property of the Petitioner; (use legal descriptions for real
       estate).
                1. 1978 Chevy Pickup
               2. One half of Respondents retirement benefits for 13 years
               3. One half of furniture and household goods.
               4. $8,000 dollars, which is half of agreed upon equity in home at the
       time of separation. Respondent agrees to pay Petitioner this amount within
       ten years of separation, or upon sale of home. This property is legally
       described as follows Lot 24 S.E. Alta Lake Golf Course. 1981 Homette
       Mobil [sic] Home.

               (8) RESPONDENT'S PROPERTY. The following property is the
       sole and separate property of the Respondent; (use legal descriptions for
       real estate).
               1. 1981 Monte Carlo
               2. One half of household furniture and goods.
               3. All money from sale of home after $8,000 has been paid to
       petitioner.
               4. Half of retirement benefits for 13 years and full amount after that
       period of time.

CP at 13. We do not know who drafted the language addressing the distribution of Frank

Taylor's retirement benefits.


                                             3
No. 33878-9-III
In re Marriage of Taylor


       In 2014, Frank Taylor, when nearing retirement, requested that DRS calculate

Sharon Radovich' s portion of his retirement benefit as allocated by the dissolution

decree. DRS responded by letter with the following computation:

              CONTRIBUTION INFORMATION

       •   Contributions earned as of 11/1/83                          $22,364.57
       •   Assets in account subject to a Property Division            $22,364.57

              MONTHLY BENEFIT INFORMATION

              The calculation of monthly retirement benefit is based on the
       retirement benefit earned only from 11/2/70 to 11/1/83 and assumes you
       terminated service at that time, leaving the account balance to accrue a
       future retirement benefit at age 60.

       •   Service credit earned from 11/2/70 to 11/1/83          156 months
       •   AFC earned from 11/1/81 to 10/31/83                    $3,024.20
       •   Estimated benefit amount = 2 °/o x 156 x $3,024.20 + 12 = $788.40
           per mo.

CP at 70. AFC means average final compensation. We do not know why DRS gauged

the benefit on the assumption Taylor would retire at age sixty. We do not know the

source of the two percent figure, but assume that figure is standard in determining PERS

1 retirement benefits. We have performed the same calculation performed by DRS and

arrive at $786.29, not $788.40.

      Although not relevant to resolution of this appeal, the parties in their briefs

mention the current value of half of Frank Taylor's contributions to PERS 1 through the

date of separation. Half the contributions from the first 13 years equals $11,182.29.


                                             4
No. 33878-9-III
In re Marriage of Taylor


       Frank Taylor retired from the Douglas County Public Utility District on December

31, 2014, thirty-one years after the separation and divorce. PERS 1 commenced paying

Taylor a gross monthly benefit of $6,743.42. DRS refused to issue retirement benefits to

Sharon Radovich until DRS received a court order with language acceptable to it.

                                      PROCEDURE

       On June 3, 2015, Sharon Radovich filed a motion for entry of an amended

property division, under which she sought an award of retirement benefits. We consider

her motion to seek clarification of the 1985 marriage dissolution decree. Radovich

proposed that she receive half of Frank Taylor's monthly retirement benefits during the

thirteen years following his retirement. She first calculated this amount at $4,081.98 per

month. She later reduced the amount to $3,371.71 per month, one-half of Frank Taylor's

gross monthly payment of $6,743.42. Sharon Radovich's calculation gives her the

benefit of Taylor's higher average final compensation as the result of working an

additional thirty-one years after the separation and divorce. Frank contested this amount

and cross moved for a clarification of the award of retirement benefits. Frank proposed

an order awarding Radovich an amount consistent with the DRS calculation. This

amount is $394.20 per month.

      The trial court conducted two hearings. At each hearing, the parties provided their

respective proposed findings of fact and conclusions of law supported by affidavits in

which each declared his or her intent when entering the divorce decree. After the second

                                            5
No. 33878-9-111
In re Marriage of Taylor


hearing, the trial court adopted Frank Taylor's position that Sharon Radovich receive

$394.20 per month and entered findings of fact and conclusions of law consistent with

this ruling. The findings and conclusions included:

                                 FINDINGS OF FACT

              FF-13. The number "13" [in terms of years] is used twice in the
      decree. The number "13" and the reference to it twice in the decree is
      important because it gives the Court a context, a basis for saying that there
      is no ambiguity. The number "13" and the reference to it twice is really
      helpful and a reason why the Court can say that the Decree is unambiguous
      on its face. The number reflects that Mr. Taylor worked for a state entity
      and contributed to the state retirement system for a period of 13 years while
      married to Ms. Radovich and before they separated.
              FF-14B. The court is considering the four corners of the decree and
      is interpreting the same with consideration of parol or extrinsic evidence.
              FF-15. Both parties made a conscious decision that the award would
      be based on Mr. Taylor's contributions of community property, his income,
      for 13 years that he was working and they further decided that, after they
      were divorced, any of his contributions to the retirement would be his. The
      references to 13 years are based on those contributions of marital income to
      Mr. Taylor's retirement account.

              FF-18. Contributions to the retirement account made after the
      parties separated were the separate property of Mr. Taylor not Ms.
      Radovich.
              FF-19. Ms. Radovich waited 31 years for disbursement from Mr.
      Taylor's retirement account.
              FF-20. The Department of Retirement Systems determined the
      value of the retirement account as of the date the parties separated and also
      at the date Mr. Taylor retired. The value of Ms. Radovich's portion of Mr.
      Taylor's account increased from the date of separation to the date of Mr.
      Taylor's retirement and such increase sufficiently compensated her for the
      payments delayed for 31 years.
              FF-21. To distribute one half of the total monthly benefits at the
      time of retirement to Ms. Radovich would result in a significantly



                                            6
No. 33878-9-III
In re Marriage of Taylor


      disproportionate distribution, which would not be a fair and equitable
      distribution of assets.
             FF-22. There is no ambiguity with regard to what the language in
      the decree indicates. There is room for interpretation, but there is no
      ambiguity.

                              CONCLUSIONS OF LAW

              CL-1. The parties' assets and obligations must be distributed in a
      fair and equitable manner.
              CL-2. The award of retirement benefits in the decree of dissolution
      is not ambiguous. The award of the retirement benefits is a property
      settlement provision not subject to modification.
              CL-3. The Court is interpreting the decree as written and signed 30
      years ago.
              CL-4. The Court need not go beyond the four comers of the decree
      to interpret its meaning.

              CL-5. The intent of the parties was that they made a conscious
      decision to base Ms. Radovich's award on Mr. Taylor's contributions of
      community property, his income for the 13 years that he was working and
      married to Ms. Taylor (now Radovich).
              CL-6. The parties decided that any contributions Mr. Taylor made
      after they were separated would be his separate property and the court so
      concludes.
              CL-7. The sums Mr. Taylor contributed to the retirement account
      from the time of separation to the time of Mr. Taylor's retirement are the
      separate property of Mr. Taylor, and Ms. Radovich has no interest in those
      sums.
              NOTE: There is no CL-8.
              CL-9A. Compensation for the increase in value of the retirement
      benefits over the 30 years since the decree is captured in the increased value
      of the monthly payments calculated by DRS and comports with the ruling
      in In re the Marriage of Moore, 99 Wn. App. 144, 993 P.2d 271 (Div. 3,
      1999).
              CL-9B. The basis of Ms. Radovich's property right to part of Mr.
      Taylor's retirement account is: her separate property and all of the interest
      that accrued on her separate property interest in Mr. Taylor's retirement


                                            7
No. 33878-9-III
In re Marriage of Taylor


       account. This comports with the ruling in In re the Marriage of Moore, 99
       Wn. App. 144, 993 P.2d 271 (Div. 3, 1999).
               CL-10. Ms. Radovich is entitled to, for a period of the rest of her
       life, one half of the benefits that result from contributions made from the
       marital community of Sharon Taylor and Frank Taylor during the 13 years
       that Mr. Taylor worked for the State of Washington entity to the
       Department of Retirement Systems, that resulted from the contributions
       made from the marital community of the Taylors.
               CL-11. The distribution of retirement funds is fair and equitable.

CP at 201-04.

                                 LAW AND ANALYSIS

       Sharon Radovich appeals the trial court's decision and contends the trial court

erred by adopting Frank Taylor's proposed order regarding distribution of Taylor's

retirement benefits. She argues the trial court improperly considered the decree's effect,

incorrectly interpreted Taylor and Radovich's divorce decree, and ignored dispositive

case law supporting her proposed order. Taylor responds that the trial court did not abuse

its discretion when considering extrinsic evidence to interpret the unambiguous divorce

decree. According to Taylor, the trial court properly found all pension contributions he

made after separation to be his separate property.

       Sharon Radovich and Frank Taylor asked the trial court to interpret a decades old

dissolution decree. If a decree is ambiguous, a party may bring a declaratory judgment

action to determine the parties' rights and liabilities. In re Marriage of Chavez, 80 Wn.

App. 432,435,909 P.2d 314 (1996). When a judgment is ambiguous, a reviewing court

seeks to ascertain the intention of the court entering the original decree by using general

                                             8
No. 33878-9-111
In re Marriage of Taylor


rules of construction applicable to statutes, contracts and other writings. In re Marriage

of Gimlett, 95 Wn.2d 699, 704-05, 629 P.2d 450 (1981). Normally, the court is limited to

examining the provisions of the decree to resolve issues concerning its intended effect.

In re Marriage ofGimlett, 95 Wn.2d at 705.

       According to the Washington Supreme Court, the clarification of a decree entails a

question of law that an appeals court reviews de novo. State v. Campbell, 125 Wn.2d

797, 800, 888 P.2d 1185 (1995). Nevertheless, according to this court in In re Marriage

of Moore, 99 Wn. App. 144,146,993 P.2d 271 (1999), we review a declaratory order

clarifying a property division for abuse of discretion. We determine de novo review to

control, since Supreme Court precedent supplants Court of Appeals rulings. Also, even

under Court of Appeals jurisprudence, since clarification amounts to a question of law, de

novo review prevails. Stone v. Southwest Suburban Sewer District, 116 Wn. App. 434,

438, 65 P.3d 1230 (2003); Case v. Dundom, 115 Wn. App. 199, 201, 58 P.3d 919 (2002).

In In re Marriage of Chavez, 80 Wn. App. at 435, this court reviewed de novo a trial

court's decision clarifying pension award language in a dissolution decree. Because of

the legal nature of the issue on appeal, we do not address the validity of the trial court's

findings of fact and conclusions of law.

       The trial court ruled that the decree contained no ambiguity, but then, in part,

relied on testimony as to the parties' intent when entering the decree. This ruling ignores

the principles that the court only looks to the words in the decree to discern the earlier

                                              9
     No. 33878-9-111
     In re Marriage of Taylor


     court's intent, not the parties' intent. We do not know if the trial court would have ruled

     differently if the court followed the intent of the 1985 court rather than the parties. We

     recognize that the court entering the decree likely perfunctorily signed the decree without

     considering the import of its terms, since the parties drafted and agreed to the decree's

     language. Nevertheless, the law directs us to seek the court's intent. Therefore, we do

     not consider the declarations of Frank Taylor and Sharon Radovich.

            The 1985 divorce decree granted Sharon Radovich "one half of Respondent's

     retirement benefits for 13 years." CP at 13. In turn the decree awarded Frank Taylor

     "half of retirement benefits for 13 years and full amount after that period of time." CP at

     13. The decree does not indicate on what date those retirement benefits are calculated.
i

1    The decree does not state whether Sharon Radovich receives payments over thirteen
I
I
I    years or whether the parties use the number thirteen as a factor in the calculation of the

     monthly benefits for the rest of Radovich's life. We discern three possible readings of
I    the decree:
I           1. Sharon Radovich receives one-half of the amount Frank Taylor receives from


II   DRS over thirteen years, presumably during the first thirteen years of retirement. Under

I    this reading, Radovich receives $3,371.71 per month for thirteen years after Taylor's
I

!
·
     retirement.
I
~
            2. We determine the monthly amount that Frank Taylor would have garnered ifhe

     only worked thirteen years with the Douglas County PUD. We then distribute half of that

                                                  10
No. 33878-9-III
In re Marriage of Taylor


amount to Sharon Radovich each month. Under this interpretation, Radovich receives

$394.20 per month for the rest of her life.

       3. We engage in this calculation: divide the number thirteen by the number of

years Taylor worked at the PUD. Divide the remainder by half and then give that

percentage of Frank Taylor's payments to Sharon Radovich. The calculation follows:

13/44 x 1/2 = 13/88 = 14.77% of monthly amount of $6,743.42 = $996.19. Under this

reading, Radovich receives $996.19 each month for the rest of her life.

       Sharon Radovich seeks an award consistent with the first calculation. Her

interpretation would reform the language to read "for 13 years after Taylor retires,

Radovich receives one half of his retirement benefits." Frank Taylor seeks an award

consistent with the second computation, and the trial court agreed. Taylor asks that we

insert language so it reads "one half of Taylor's retirement benefit contributions made

during the last 13 years of marriage." Based on precedent, we adopt the third calculation.

      Pension and other retirement plans are deferred compensation and as such they are

not mere expectancies but vested rights possessed by employees. Farver v. Department

of Retirement Systems, 97 Wn.2d 344, 346, 644 P.2d 1149 (1982). A fundamental

principle of community property law declares that, since both spouses participate in the

community, both are entitled to share in its reward. Farver v Department ofRetirement

Systems, 97 Wn.2d at 346. Pension rights, as deferred compensation, constitute property

rights subject to division by the court. In re Marriage of Chavez, 80 Wn. App. at 436

                                              11
No. 33878-9-111
In re Marriage of Taylor


(1996).

          The method used by courts to calculate the community share of a pension is by

dividing the number of months of marriage by the total months of service and multiplying

that by the monthly benefit at retirement. In re Marriage of Chavez, 80 Wn. App. at 436

(1996); In re Marriage ofBulicek, 59 Wn. App. 630,639, 800 P.2d 394 (1990); In re

Marriage of Pea, 17 Wn. App. 728,731,566 P.2d 212 (1977). This calculation

establishes the community portion of the total pension credits earned by the retiree. In re

Marriage of Chavez, 80 Wn. App. at 436. The court then divides the figure in two to

finalize the amount awarded to the other spouse.

          Frank Taylor's method of calculation fails to note that his higher average financial

compensation at the time of retirement resulted in part because of his labor during the

marriage. In re Marriage ofBulicek, 59 Wn. App. at 638; In re Marriage ofPea, 17 Wn.

App. at 731; In re Marriage of Chavez, 80 Wn. App. at 437. The fact that a retiree's final

pension is calculated on a salary that is unknown at the time the income is deferred is a

normal and anticipated feature of a deferred compensation program. In re Marriage of

Chavez, 80 Wn. App. at 437. The nonpensioner's pension share should be based on the

pensioner's salary at the time of his retirement. In re Marriage of Chavez, 80 Wn. App.

at 437.

          The trial court principally relied on In re Marriage of Moore, 99 Wn. App. 144,

993 P.2d 271 (1999). The question on appeal in Moore was whether the wife's award of

                                               12
                                                                                                 ,
No. 33878-9-111
In re Marriage of Taylor


half of the community interest in a pension to be disbursed in the future created a

property interest or a lien against the pension. We concluded that the award created a

property interest such that the recipient was entitled to the disbursement value of her

share at the time of distribution rather than its value at the time of the decree. We

determine Moore to be consistent with In re Marriage of Pea, In re Marriage ofBulicek,

In re Marriage of Chavez, and our ruling today.

                                       Attorney Fees

       Each party seeks an award of reasonable attorney fees and costs on appeal. Under

RAP 18.l(a), this court may award a party recovery of reasonable attorney fees or

expenses on review if applicable law grants a party such right. RCW 26.09 .140 allows

the court to order a party to pay for the cost of maintaining the appeal and attorney fees in

addition to statutory costs. The primary considerations in a fee award in dissolution

actions are need and ability to pay as well as the general equity of the fee given

disposition of the marital property. In re Marriage ofDavison, 112 Wn. App. 251,259,

48 P.3d 358 (2002).

       RAP 18. l(c) declares:

              Affidavit of Financial Need. In any action where applicable law
       mandates consideration of the financial resources of one or more parties
       regarding an award of attorney fees and expenses, each party must serve
       upon the other and file a financial affidavit no later than 10 days prior to the
       date the case is set for oral argument or consideration on the merits.




                                             13
No. 33878-9-III
In re Marriage of Taylor


Neither party has filed a financial affidavit in compliance with RAP 18.l(c). Therefore,

we deny each party an award. Since both parties prevail in part on appeal, we also deny

costs to each party.

                                     CONCLUSION

       We remand to the trial court to enter an order directing payment to Sharon

Radovich, from Frank Taylor's DRS retirement benefits, in the amount of $996.19 each

month for the rest of her life.

       A majority of the panel has determined 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.




I CONCUR:




                                            14
                                           No. 33878-9-111

             SIDDOWAY, J. (dissenting)-The majority opinion identifies three possible

     constructions of the pension division provisions of the parties' 1985 divorce decree and

     adopts the construction that neither party advanced, and that reflects an approach that

     (while now favored) was not embraced in a reported Washington decision until 1990-

     five years after the decree we are construing. I would affirm the trial court, which

     adopted a construction that was advanced by a party and is consistent with the law in

     1985.

             Two provisions of the parties' petition for divorce and decree are key. Section

     Vl(b) of the petition states:

             We have agreed that our property will be divided as follows:

                   3. Retirement Benefits, Douglas County [Public Utility District
             (PUD)]. Half to Petitioner for 13 years after Respondent retires.
i
     Clerk's Papers (CP) at 3. Sections 7 and 8 of the decree state:


I            (7)    [WIFE'S] PROPERTY. The following property is the sole and
             separate property of the [Wife] ....
I                   2. One half of Respondents retirement benefits for 13 years ....
I
l
             (8)    [HUSBAND'S] PROPERTY. The following property is the sole
             and separate property of the [Husband].

I                   4. Half of retirement benefits for 13 years and full amount after that
I            period of time.

I
t
     CP at 13.


1                                                  1
:
1i
i
No. 33878-9-111
In re Marriage of Taylor


       Mr. Taylor retired effective December 31, 2014. Although I did not find his

retirement age in our record, we do know that Mr. Taylor and Ms. Radovich were

married in July 1962, meaning that if he was 18 years old when he married, he retired at

age 70. It is a reasonable inference that he retired at or near age 70.

       Ms. Radovich took the position that the import of the decree was that she was

entitled to receive one-half of Mr. Taylor's $6,743.42 gross monthly retirement benefit

for 13 years, and only after that would he receive his full retirement benefit. While that

construction is literally consistent with the decree's language, it defies common sense.

As the trial court found, "13" is understandable as a factor in determining the portion of

Mr. Taylor's retirement benefit to which Ms. Radovich is entitled, since it is the number

of years of the marriage during which contributiQns were made to the Public Employee's

Retirement System, Plan 1 (PERS 1). It is completely arbitrary as a basis for how long

she should receive half of his benefit after retirement, however. And based on Mr.

Taylor's reasonable life expectancy, it would mean that although it could be decades after

the separation and divorce before he took retirement (it turned out to be 31 years), he

would have to afford her a full half of his retirement benefit for what could easily be most

of his retired years. The trial court reasonably rejected Ms. Radovich's construction of

the decree.

       Mr. Taylor took the position that the decree created a separate property interest in

Ms. Radovich in one-half the value of his retirement benefits as of the time of

                                              2
No. 33878-9-III
In re Marriage of Taylor


dissolution; in other words, the 13 years' worth of benefits earned at that time. He argued

that this was an acceptable method of allocating retirement benefits as of 1985, as

reflected in this court's decision in In re Marriage of Moore, 99 Wn. App. 144, 993 P.2d

271 (1999).

       Moore was a 1999 decision but it dealt with a 1984 divorce decree that gave a wife

an interest in her husband's pension, then valued at $42,781.48. It awarded her "half the

community interest in the pension," requiring that she "' receive this portion of the

pension' at such time as it is being distributed." Id. at 145-46. Thirteen years later, when

the husband was ready to retire, he offered her $21,390.74, which was one-half the

pension's value at the time of the divorce. This court described what had been awarded

as follows:

              [The court] awarded [the wife] an interest in the pension
       corresponding to half the community interest in the pension's then present
       value. [The wife's] interest in the future retirement benefits became her
       separate property upon entry of the decree. . . . The increase in value after
       dissolution, therefore, belongs to [the wife], absent a contrary expression in
       the decree.

Id. at 147 (emphasis added) (citations omitted).

       Mr. Taylor provided the court with a letter from the Washington State Department

of Retirement Systems (DRS) that performed the type of analysis contemplated by




                                             3
No. 33878-9-III
In re Marriage of Taylor


Moore. 1 It calculated that if Mr. Taylor had left the PUD's employ at the time of the

parties' dissolution in 1985, the monthly benefit he had earned and would receive at age

60 based on his average final compensation and months of service was $788.40. From

that, he argued that Ms. Radovich's one-half would be $394.20. He also argued that she

received the benefit of growth, as in Moore, because her share of his accumulated

contributions, which had been $11,182.29 at the time of the divorce, had grown to

$60,807.74. Since he had already retired before she sought an order addressing her share

of the retirement benefit, DRS informed her that she could no longer elect distribution of

the $60,807.74. But it did say that her share of the contribution amount, with earnings,

could be available if Mr. Taylor passed away before the accumulated contributions were

depleted.

       The method of calculating a nonemployee spouse's share of a retirement benefit

discussed in Moore and calculated for Mr. Taylor by DRS is no longer the favored

approach in Washington. In 1990, in the case of In re Marriage of Bulicek, 59 Wn. App.

630, 800 P.2d 394, this court approved what Washington cases now refer to as the "time

rule" method of dividing pensions in dissolutions. In re Marriage of Rockwell, 141 Wn.

App. 235, 252, 170 P.3d 572 (2007). Other authorities refer to it as the "marital


       1
        I would be more comfortable relying on the law and regulations applicable to
PERS 1 retirement benefits in 1985 than on the e-mails and correspondence available in
our record. I will nonetheless rely on the authority and information provided to the trial
court.
                                             4
No. 33878-9-III
In re Marriage of Taylor


foundation" approach. See BRETT R. TURNER, EQUITABLE DISTRIBUTION OF PROPERTY§

6.26, at 166-83 (3d ed. 2005). It is simple to calculate, being equal to a "coverture

fraction" (creditable time during marriage + total creditable time) multiplied by the entire

benefit the employee ultimately receives. Id. at 167.

       I disagree with the implication of the majority opinion that the time rule approach

was recognized in Washington in 1977, in In re Marriage ofPea, 17 Wn. App. 728, 566

P.2d 212. As Bulicek itself observes (and criticizes), Pea expressed a preference for

dividing a pension based on its present value where present value information was

available. 2 The formula the Pea court applied for calculating the wife's share might look

time-rule-like because it multiplies two numbers, one being the coverture factor. But

while the multiplier is the same, the multiplicand is not. In Pea, the husband was 37 and

might not retire for many years. But he would not qualify at all for the military pension

at issue until 2 years from the time of trial-not until October 1978. Since.it was

impossible to calculate a dissolution-date value for a pension to which he was not yet

entitled, the court used the earliest possible date-October 1978-and multiplied the

coverture factor by the benefit he could draw at that time. It did not, as the time rule

method would, provide that the coverture factor would be applied to the much larger


       2 "Appellant argues that [Pea] requires a trial court to determine present value of
future pension benefits where there is evidence to support such a determination, and
prohibits use of a percentage allocation of future benefits on an as-received basis. We
reject that analysis." Bulicek, 59 Wn. App. at 639.
                                              5
No. 33878-9-111
In re Marriage of Taylor


benefit he might draw if he retired many years later. 3 The approach of Pea is like the

approach in Moore-the only difference is that the husband's ineligibility for the pension

required the court to rely on a calculation 2 years out.

       It may be tempting to give Ms. Radovich the benefit of more current case law that

better addresses how to equitably divide a pension. And I say to Mr. Taylor that the

benefit allocation ordered by the majority is the allocation presently viewed by

Washington courts as most fair. But I believe the trial court was truer to the legal

question presented: what is a reasonable construction of the decree, considering the date

on which it was entered. Based on the legal authority and arguments presented by the

parties, I believe the trial court correctly rejected Ms. Radovich's position and accepted

Mr. Taylor's. For that reason, I dissent.



                                                    73!dhw 4a ',i)--.
                                                    ddoway, J.




       3The court stated she would be entitled to cost-of-living increases that might
apply thereafter, but not to increases attributable to the husband's service beyond the
1978 earliest-retirement date. Pea, 17 Wn. App. at 732.
                                              6
