IN RE COOK v. COOK, 146 Wn. App. 1010 (2008)

In the Matter of the Marriage of JAMES EDWARD COOK, Respondent, and DONNA SUE COOK, Appellant.

No. 59354-4-I.The Court of Appeals of Washington, Division One.
July 28, 2008.

Appeal from a judgment of the Superior Court for King County, No. 93-3-01167-2, Chris Washington, J., entered December 6, 2006.

Reversed by unpublished per curiam opinion.

[EDITORS’ NOTE: This case is unpublished as indicated by the issuing court.]

PER CURIAM.

In this appeal from orders relating to the division of retirement benefits in a dissolution decree, Donna Sue Cook contends the superior court erred when it clarified the decree and accompanying benefits order and substantially reduced a benefits calculation made by the federal Office of Personnel Management (OPM). Because we conclude the decree and order unambiguously awarded Donna Sue exactly what OPM determined she was entitled to, we reverse.

FACTS
James and Donna Sue Cook married in May 1980 and divorced in 1993. Their dissolution decree provided in pertinent part that Donna Sue would receive the following portion of James’ retirement benefits:

One-half (1/2) of Husband/Petitioner’s gross monthly annuity with cost of living adjustments and refund of employee contributions, pursuant to the
requirements and standard terminology provided in part 838 of Title 5, Code of Federal Regulations, of the Civil Service Retirement System that accrued from date of marriage until the date of separation, as described in the Court Order Affecting CSRS Benefits, the terms of which are incorporated herein by reference.

Clerk’s Papers at 113.

The incorporated “Order Affecting CSRS Benefits” (benefits order) stated: “The former spouse is entitled to a pro rata share of the employee’s gross monthly annuity with cost-of-living adjustments . . . which accrued from the date of marriage to the date of separation of the parties, May 1, 1992.” Clerk’s Papers at 118. Under 5 C.F.R. section 838.621(a), pro rata is defined as “one-half of the fraction whose numerator is the number of months of Federal civilian and military service that the employee performed during the marriage whose denominator is the total number of months of Federal civilian and military service performed by the employee.”

In February 2006, following James’ retirement, OPM informed him that the calculation of Donna Sue’s monthly benefit would include salary adjustments he received after the parties’ separation. When James objected, OPM directed him to 5 C.F.R. section 838.622, which provided in part:

(b)(1) Unless the court order directly and unequivocally orders otherwise, a court order that awards a former spouse a portion of an employee annuity either on a percentage basis or by use of a fraction or formula provides that the former spouse’s share of the employee annuity will be adjusted to maintain the same percentage or fraction whenever the employee annuity changes as a result of
(i) Salary adjustments occurring after the date of the decree and before the employee retires; and
(ii) Cost-of-living adjustments occurring after the date of the decree and after the date of the employee’s retirement.

The same regulations provide a method for preventing the payment of post-separation salary adjustments to a former spouse:

To prevent the application of salary adjustments after the date of divorce or separation, the court must either state the exact dollar amount of the award to the former spouse or specifically instruct OPM not to apply salary adjustments after the specified date in computing the former spouses’ share of the employee annuity.

5C.F.R. § 838.622(c)(1)(ii). Because the benefits order did not specifically exclude post-separation salary adjustments from Donna Sue’s annuity benefit, OPM concluded she was entitled to a portion of those adjustments.

In March 2006, James filed a motion to clarify the benefits order. Donna Sue resisted the motion, arguing that there was no basis under CR 60 to disturb either the decree or the benefits order. James argued that he was not seeking to reopen or modify those decisions, but rather only sought clarification. A court commissioner determined there had been no meeting of the minds on this issue at the time of the decree and ordered an evidentiary hearing to determine the parties’ intent. Following the hearing, the superior court concluded that “we have to live with not only what was in the order that was agreed upon, but also with the ramification as far as the federal government is concerned.” Report of Proceedings (July 21, 2006) at 44-45. The court then entered orders reducing Donna Sue’s monthly benefit amount from $1,050, as calculated by OPM, to $585, and directing her to reimburse James for $2,789 in overpayments.

DISCUSSION
Donna Sue contends the decree and benefits order unambiguously awarded her precisely what OPM concluded she was entitled to, and that the superior court erred in concluding otherwise. We agree.

Interpretation of a court order or dissolution decree is a question of law and our review is de novo. In re Marriage of Thompson, 97 Wn. App. 873, 877, 988 P.2d 499 (1999). In this case, the decree expressly states that Donna Sue is to receive one-half of James’ gross monthly annuity “pursuant to the requirements and standard terminology provided in part 838 of Title 5, Code of Federal Regulations, of the Civil Service Retirement System that accrued from date of marriage until the date of separation.” Clerk’s Papers at 113. The benefits order likewise states that its language is “governed by the standard conventions established in that part.” Clerk’s Papers at 189. As noted above, one of the regulation’s requirements is that a spouse’s portion of an employee annuity will include post-separation salary adjustments unless the decree or order expressly states otherwise. 5 C.F.R. 838.622(b)(1). The parties plainly and unambiguously intended that their decree and benefits order would be interpreted in accordance with this requirement. Accordingly, because neither the decree nor the order expressly excluded post-separation salary increases from Donna Sue’s benefit calculation, those increases are included in her benefits and the superior court erred in concluding otherwise.

Reversed.