MARRIAGE OF HARRIS, 45364-5-I (Wash.App. 7-30-2001)

No. 45364-5-I.The Court of Appeals of Washington, Division One.
Filed: July 30, 2001. PUBLISHED IN PART. DO NOT CITE UNPUBLISHED PORTION. SEE RAP 10.4(h).

Appeal from Superior Court of Island County, No. 98-3-00348-9, Hon. Alan R. Hancock, September 10, 1999, Judgment or order under review.

Counsel for Appellant(s), Molly M. McPherson, One Front St, P.O. Box 1617, Coupeville, WA 98239-1617.

Counsel for Respondent(s), Mark D. Theune, Cohen Manni Theune, P.O. Box 889, Oak Harbor, WA 98277.

FAYE C. KENNEDY, J.

Perry Harris appeals the trial court’s division of Theresa Harris’s military pension benefits in the decree dissolving the parties’ marriage. The court ordered Theresa to commence making monthly payments to Perry for his share of the community interest in the pension when she first became eligible for retirement after 20 years of active service, although she had no intention of retiring that soon. Perry argues that the trial court erred when it declined to require Theresa to increase her monthly payments some 2 years later — at the earliest date she could retire at an officer’s base pay grade although she had no intention of retiring at that time either — and to increase them again at the date of her actual retirement to reflect his share of the community interest in the pension as measured against her total years of military service and her final officer’s pay grade. But Perry was not required to share the risks that are inherent in deferred receipt of income. Moreover, Perry does not propose to credit the marital community with the payments he will receive between Theresa’s earliest possible retirement date and the date of her actual retirement, and such credit would be required if Perry were not to enjoy a windfall at Theresa’s expense. Finally, Perry failed to provide the trial court with actuarial evidence by which to measure the present value of the future stream of income that he will receive commencing with Theresa’s earliest possible retirement date, as compared to the present value of what he would receive if he were required to wait until the pension reaches pay status before enjoying any of its benefits. For all these reasons, we find no abuse of discretion and affirm the trial court’s distribution of the military pension.[1]

FACTS
Theresa Harris and Perry Harris were married on March 27, 1982 and separated on October 5, 1998. The decree dissolving their marriage was entered on September 10, 1999. At the time of trial, Theresa was 37 years old, and Perry was 41 years old. Theresa Harris has been in active service in the Navy since July 22, 1980. At the time of trial, Theresa held the rank of Lieutenant, a commission she received in June 1992. Her monthly base pay at the time of trial was $4,008 at `O-3E.’ Under federal law, she was first eligible to retire in July 2000 at the monthly base pay grade of `E-6′ ($2,172.60) for 20 years of active service, making her eligible to receive $1,086.30 per month in retired pay. She will not be eligible to retire at the monthly base pay grade of `O-3E’ until June 2002, at which point she will have served 10 years as an officer and could receive $2,004 in monthly retired pay.[2] Theresa testified that she intends to retire after serving 30 years, by which point she hopes to have reached the rank of Captain so that she would retire at the base pay grade of `O-6′ ($5,834.40) and could receive $2,917.20 in monthly retired pay.

From the date of the parties’ marriage to the date of their separation was 198 months. Accordingly, as of the earliest date that Theresa could retire and receive a military pension (240 months of active service) the marital community owned 82.5% of the pension. Perry had served as the primary homemaker spouse during a substantial part of the marriage and was unemployed at the time of trial. Both parties proposed that Perry begin receiving his proportionate share of the pension at the earliest date that Theresa could commence drawing pension payments if she were to retire, that is, on August 1, 2000. The parties agreed that Perry’s share of the community portion of the pension would be set at 41.4% and that Theresa would commence making monthly payments to Terry in the amount of $450 per month commencing August 1, 2000, whether or not she retired after 20 years of active service.[3]

The court rejected Perry’s request to be awarded step increases in his monthly payments in the sum of 41.4% of the total monthly pension Theresa could receive after serving 10 years as an officer, and 41.4% of the total monthly pension at the time of her actual retirement. This appeal followed.

DISCUSSION
Perry argues that the court erred in calculating the monthly pension amount solely by referencing the time Theresa was first eligible to retire rather than providing him with step increases at the time that she could retire as an officer and again at the time she actually retires. Perry maintains that since Theresa intends to retire as an officer, he is entitled to share in the higher pension because Theresa first became an officer while the two were still married.

The trial court has broad discretion in awarding property in a dissolution action, and will be reversed only upon a showing of manifest abuse of discretion. Stachofsky v. Stachofsky, 90 Wn. App. 135, 951 P.2d 346 (1998). A court abuses its discretion if its decision is based on untenable grounds. Id.

In exercising its discretion in a marital dissolution proceeding, the court is required by RCW 26.09.080 to make a `just and equitable’ property distribution, and is guided by the following factors:

(1) The nature and extent of the community property;

(2) The nature and extent of the separate property;

(3) The duration of the marriage; and

(4) The economic circumstances of each spouse at the time the division of property is to become effective[.]

The typical formula used to determine the total community share of a pension is the months of service during marriage divided by the total months of service at retirement multiplied by the monthly benefit at retirement. In re Marriage of Greene, 97 Wn. App. 708, 713, 986 P.2d 144
(1999) (citing In re Marriage of Chavez, 80 Wn. App. 432, 436, 909 P.2d 314
(1996)). The community share of a pension may include increased benefits attributable to salary increases following dissolution but not increases due to additional years of service. Chavez, 80 Wn. App. at 437-38. Perry does not contest the equation used to apportion his share of Theresa’s pension benefits.[4] What he does dispute is the trial court’s refusal to reapportion his share once Theresa becomes eligible to retire as an officer, and again when she actually retires.[5] And he argues that this court should adopt a per se rule requiring that the nonmilitary spouse’s proportionate share of the pension be based on the military spouse’s actual rank and eligibility for retirement pay at any given time, up to and including the actual date of retirement.

But our Supreme Court has said, with respect to the division of military retirement benefits, that `[t]here can be no set rule for determining every case and as in all other cases of property distribution, the trial court must exercise a wise and sound discretion.’ Wilder v. Wilder, 85 Wn.2d 364, 369, 534 P.2d 1355 (1975). This case illustrates the wisdom of that premise. Here, Perry was in need of an income stream to supplement his anticipated future earnings, given the fact that he had served primarily as a homemaker during much of the marriage. And so the parties agreed that Perry should commence receiving his proportionate share of the military pension at the earliest date that Theresa could retire and still draw a pension, that being in July 2000. Because Theresa had no intention of retiring then, nor for many years in the future, Perry’s monthly payments will come from Theresa rather than through the Veteran’s Administration, until such time as she actually retires. Perry overlooks the fact that his share of the pension effectively reached pay status as of the date that Theresa first became eligible for retirement. Once the court decided to award payments to Perry for his proportionate share of the pension starting in 2000, it would have been improper for the court to treat the matter as if Perry had been required to wait to receive pension benefits until 2002, and even more improper to treat the matter as if Perry had been required to wait until Theresa actually retires to start drawing benefits — unless, of course, the court were also to require Perry to reimburse the marital community for all the payments received by him in the interim.

In In re Marriage of Bulicek, 59 Wn. App. 630, 638-39, 800 P.2d 394
(1990), we affirmed the trial court’s award of pension benefits on a percentage, as-received basis, noting that the community was entitled to share in post-separation increases in the pension’s value because such a disposition `shares the risks inherent in deferred receipt of the income[.]’ Here, the court’s award did not leave Perry with such risks. As we noted in In re Marriage of Hurd, 69 Wn. App. 38, 44-46, 848 P.2d 185
(1993), the present value of a defined benefit plan is calculated based on several assumptions, including the projected date of retirement and the member’s statistical life expectancy. A member who retires at the first eligibility date may receive a smaller monthly benefit than if he chooses to retire later, but for a longer period of time, based upon a longer projected life expectancy. Thus, the present value of such a plan will be greater if it is calculated as of the earlier date of retirement eligibility.’[6]

Theresa’s military retirement plan is also a defined benefit plan. In this case, because the trial court ordered that Perry’s payments begin at Theresa’s earliest possible retirement date, Perry will receive a stream of income that, based on Theresa’s longer life expectancy after 20 years of active duty rather than after 30 years, may very well have a present value that exceeds the value of what he would receive if he were required to wait until Theresa actually retires to commence receiving benefits — notwithstanding that his monthly payments would be larger at that time. In Hurd, the trial court received undisputed actuarial evidence that the value of the community share in the pension was worth more at the time of the retirement plan’s earliest eligibility date than it would be if the employed spouse continued to work and chose to retire at a later date. Id. at 45. Perry has not presented actuarial evidence to either support or contradict such a conclusion in this case; thus he has not shown that the court’s division resulted in an inequity to him.

Concluding that the court’s division of the military pension was not an abuse of discretion, we affirm the judgment.

The remainder of this opinion lacks precedential value and will not be published in the Washington Appellate Reports but will be filed of public record in accord with RCW 2.06.040.

Award of Maintenance
Perry Harris argues that the duration and amount of the trial court’s maintenance award was an abuse of discretion, because the award failed to provide him with enough support to become self-sufficient `[a]fter devoting most of his adult life to his marriage, his children, and his wife’s career[.]’ Appellant’s Br. at 21.

`The award of maintenance, like the division of property, is within the discretion of the trial court.’ In re Marriage of Bulicek, 59 Wn. App. at 633
(citing In re Marriage of Nicholson, 17 Wn. App. 110, 561 P.2d 1116
(1977)). `The only limitation on amount and duration of maintenance under RCW 26.09.090 is that, in light of the relevant factors, the award must be just.’ Id. (citing In re Marriage of Morrow, 53 Wn. App. 579, 585, 770 P.2d 197 (1989)).

Factors listed in RCW 26.09.090 include the financial resources of each party; the duration of the marriage and standard of living during marriage; and the age, physical and emotional condition, and financial obligations of the spouse seeking maintenance, as well as the time needed by the spouse seeking maintenance to acquire education for appropriate employment. Id.

Perry argues that In re Marriage of Bulicek supports a conclusion that the maintenance award was in error. There, the court upheld a maintenance award of $500 per month for 1 year and then $400 per month until the employee spouse retired, noting that the wife was in `ill health and has limited job skills and experience.’ 59 Wn. App. at 634. While Perry does not argue that his health poses a barrier to self-sufficiency, he maintains that his lack of training, career, pension, and community assets make it difficult to support himself with the amount and duration of maintenance awarded.

The record reflects that Perry served in the Navy from December 1977 to December 1982. While in the Navy, he received training in nuclear propulsion and gas-turbine engine mechanics. Following his discharge, he attended Southwestern College in California full time for 2 years, receiving an associate’s degree in industrial engineering in 1984. He also had experience in auto mechanics, and had worked 3 months as a part-time security guard during the marriage.

When the parties separated in October 1998, Perry applied for positions related to automotive mechanics, but retracted his applications because he preferred to stay home and take care of the parties’ three minor children.[7] He remained unemployed at the time of trial, and testified that he could not obtain a position related to industrial engineering without returning to school to update his skills.

In its oral ruling, the court noted that Perry had previously been awarded $1,400 monthly maintenance and child support under a temporary order.

These payments began in December 1998 and by the terms of the decree of dissolution of marriage would cease with the payment for September 1999. Starting in October 1999, until the pension payments would begin in August 2000, Perry was awarded $800 per month for spousal maintenance. While it is true that Perry did not have substantial community assets upon dissolution — neither party did, their most valuable asset being the community interest in the military pension — the record shows that he was not left with the burden of substantial liabilities either. The parties agreed that Theresa, not Perry, would assume the community liabilities, a sum in excess of $10,000. Perry also testified that he had a bank account containing $8,000 to $9,000 as a result of a prior arrangement with Theresa to divide their mutual funds. It is not our role to substitute our judgment for that of the trial court, but only to determine whether the court adequately considered the circumstances of the parties when it awarded Perry $800 in monthly maintenance from October 1999 through July 2000. The court determined that Perry was capable of earning $1,200 per month if he chose to apply himself.

The record supports this determination, given Perry’s age, health, education, employment skills and experience. The court considered the fact that Perry had not availed himself of employment opportunities during separation. This was a legitimate consideration, given that the parties had been separated nearly 2 years by the time of trial, and that Theresa had provided the full support for Perry and the children during that time. Perry complains that the trial court did not award sufficient maintenance to provide him with 2 years of schooling so that he could become a computer-aided drafter, his career choice as of the time of trial. In terms of a free ride as a full-time student with no need to be employed at all, this is no doubt true. But although the trial court was required to consider Perry’s need for retraining, the court was not obligated to provide him with full support while he attended school. Many if not most adults going back to school for additional training probably work at least part time, if not full time, while attending school. Given Perry’s age, health, and previous scholastic achievement, there appears to be no reason why he cannot be employed while attending school.

Because of these parties’ nontraditional choices with respect to childcare and homemaking during the marriage, we have scrutinized the record for any evidence of gender bias on the part of the trial court, and find none. Indeed, were the roles reversed so that Theresa had been the homemaker while Perry pursued his Naval career, the spousal maintenance award in this case would be equally supportable. We hold that the trial court’s maintenance order was not an abuse of discretion.

Award of Child Support
Perry’s last argument is that the court’s order that he pay $594.40 in child support, partially based as it was on imputed income of $1,200 per month, was an abuse of discretion. He argues that because he was a stay-at-home parent for the substantial part of his marriage with Theresa, he has no training or skills that would enable him to find gainful employment; therefore he is not voluntarily unemployed.

When reviewing a child support order, we must defer to the sound discretion of the trial court, unless that discretion is exercised in an untenable or manifestly unreasonable way. In re Marriage of Wayt, 63 Wn. App. 510, 820 P.2d 519 (1991).

The relevant portion of RCW 26.19.071(6), which defines imputation of income for purposes of determining child support, states that `the court shall impute income to a parent when the parent is voluntarily unemployed or voluntarily underemployed. The court shall determine whether the parent is voluntarily underemployed or voluntarily unemployed based upon that parent’s work history, education, health, and age, or any other relevant factors.’ A parent cannot avoid obligations to his or her children by voluntarily remaining in a low paying job or by refusing to work at all. In re Marriage of Brockopp, 78 Wn. App. 441, 445, 898 P.2d 849
(1995).

The trial court reasoned that Perry was voluntarily unemployed because `rather than go out searching for work and put the kids in day care . . . he has stayed home.’ Report of Proceedings 8/4/99 at 284. This is supported by Perry’s concession that he applied for employment in November 1998 following the parties’ separation but `then I went back in and asked them to retract my applications.’ Clerk’s Papers at 82. The court reasoned that `[p]erhaps he should have been more aggressive in seeking employment and preparing for the future now that the parties are going to have to not only be legally separated but physically separated[.]’ Report of Proceedings 8/4/99 at 284.

We do not think that the imputation to Perry of $1,200 monthly income is unreasonable, notwithstanding that he served as the parties’ primary homemaker during a substantial part of the marriage. Based on a 40-hour week, that only requires an hourly wage of some $7.50. Perry is obviously intelligent, as he has an associate’s degree in industrial engineering. He also has training and experience as a gas-turbine engine technician from his time in the Navy. In addition, Perry testified to his experience in auto mechanics. He also testified that he had worked for 3 months as a security guard while he was married to Theresa. This is not a case where Perry is unemployable because of age, health, or total lack of marketable skills. While it may be true that Perry’s lack of employment during marriage makes it more difficult for him to find employment that he wishes to pursue, this does not mean that he cannot find gainful employment. We hold that the court’s decision to order $594.40 in child support based on an imputed monthly income of $1,200 was not an abuse of discretion.

Affirmed.

WE CONCUR: GROSSE, J., AGID, J.