FILE THIS OPINION WAS FILED IN CLERK’S OFFICE FOR RECORD AT 8 A.M. ON AUGUST 29, 2024 SUPREME COURT, STATE OF WASHINGTON AUGUST 29, 2024 SARAH R. PENDLETON ACTING SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
In the Matter of the Marriage of: No. 102355-3
CLIFFORD A. PORTER, En Banc
Petitioner,
and Filed: August 29, 2024
PEGGY A. PORTER,
Respondent.
WHITENER, J. — This case involves a matter of first impression. Clifford
Porter and Peggy Huckstadt (formerly known as Porter) were married from 1977 to
1994 and, during the entire marriage, Porter served in the military. In the dissolution
decree, the trial court awarded Huckstadt a fractional share of Porter’s military
retirement and entered a “Military Qualifying Court Order” (MQCO) assigning
Huckstadt a 30.25 percent interest in Porter’s disposable military retired pay. In
2002, Porter retired from the military and worked in private practice as a surgeon.
In 2009, the military involuntarily recalled Porter to active duty to serve in
Afghanistan. Porter returned to the military and during the next three years of
involuntary recalled active duty service, Porter was promoted from lieutenant In re Marriage of Porter v Porter, No. 102355-3
colonel to colonel and received a corresponding salary increase, which increased his
monthly retirement pay. In 2012, Porter retired again from active duty service.
In 2022, Porter filed a motion to clarify the dissolution decree and MQCO,
arguing that Huckstadt’s share of his military retirement should be based on his rank
and salary at the time of his first retirement in 2002, not his second retirement from
involuntary recalled active duty service in 2012. The trial court disagreed and
concluded that the increases in Porter’s military pension earned due to his
involuntary recall service counted as community property subject to division with
Huckstadt. In a partially published opinion, the Court of Appeals affirmed reasoning
that Porter’s rank and salary increases during the recall period were based on 17
years of “community efforts.” In re Marriage of Porter, 27 Wn. App. 2d 702, 713,
533 P.3d 465 (2023).
Porter appeals the Court of Appeals’ decision and presents two issues for this
court’s review. The first issue is whether Porter’s increased pension payments
earned from the time he served on involuntary recall to active duty after the divorce
constitutes community property to which Huckstadt is entitled a share. The second
issue is whether federal law preempts state courts from including retirement benefits
earned during a former spouse’s involuntary military recall period into the parties’
community property.
2 In re Marriage of Porter v Porter, No. 102355-3
We hold that Porter’s rank and salary at his second retirement cannot be used
to calculate the community portion of the military pension because the “community
efforts doctrine,” on which the Court of Appeals relied, does not apply under these
specific circumstances. Based on this holding, we decline to reach the issue of
federal preemption. Accordingly, we reverse the Court of Appeals and remand to
the trial court for further proceedings.
FACTS
I. BACKGROUND ON RECALL TO ACTIVE DUTY SERVICE AND MILITARY RETIRED PAY
“The Federal Government has long provided retirement pay to those veterans
who have retired from the Armed Forces after serving, e.g., 20 years or more.”
Howell v. Howell, 581 U.S. 214, 216, 137 S. Ct. 1400, 197 L. Ed. 2d 781 (2017); 10
U.S.C. §§ 7311 (army officers). “[M]ilitary retired pay differs in some significant
respects from a typical pension or retirement plan.” McCarty v. McCarty, 453 U.S.
210, 221, 101 S. Ct. 2728, 69 L. Ed. 2d 589 (1981). One significant difference,
relevant here, is that retired members of the armed forces remain subject to recall to
active duty by the secretary of the military department concerned “at any time.” 10
U.S.C. § 688(a), (b); McCarty, 453 U.S. at 222 (discussing Pub. L. No. 96-513, §
106, 94 Stat. 2868).
3 In re Marriage of Porter v Porter, No. 102355-3
Recall to active duty service can be either voluntary or involuntary. See, e.g.,
10 U.S.C. §§ 688 (involuntary recall), 688a (voluntary recall). For voluntary recalls,
the secretary of a military department has the authority to order a retired member to
active duty for the purposes of alleviating a “high-demand, low-density military
capability or in any other specialty,” so long as the member consents. 10 U.S.C. §
688a(a). These recalls last for a duration that is specified in the agreement between
the secretary and the member, and only 1000 members in total may be on active duty
under such an agreement at any time. 10 U.S.C. § 688a(b)-(c). However, the latter
limitation does not apply during a time of war or of national emergency declared by
Congress or the president. 10 U.S.C. § 688a(f).
For involuntary recalls, the secretary of a military department has the
authority to order a retired member to perform “such duties as the Secretary
considers necessary in the interests of national defense” without the member’s
consent. 10 U.S.C. § 688(c). Under this scenario, service time is limited to an
aggregate of 12 months within the 24 months following the first day of active duty
status. 10 U.S.C. § 688(e)(1). However, this limitation period does not apply to
certain officers such as health care professionals or during times of war or national
emergency declared by Congress or the president. 10 U.S.C. § 688 (e)(2), (f).
Recall into active duty service is neither the norm nor a foreseeable event.
According to one commentator, “[e]ven in a national emergency, a tiny percentage 4 In re Marriage of Porter v Porter, No. 102355-3
of retired service members would be realistically subject to involuntary recall.”
Steve Vladeck, The Supreme Court and Military Jurisdiction Over Retired
Servicemembers, LAWFARE (Feb. 12, 2019, 7:00 AM),
https://www.lawfareblog.com/supreme-court-and-military-jurisdiction-over-
retired-servicemembers [https://perma.cc/K8W9-KNP5]. Another commentator
explained that “[r]etirees have not been recalled into active duty service because of
the readily available pool from each [military] branch’s respective reserve
component.” Pavan S. Krishnamurthy & Javier Perez, Contemptuous Speech:
Rethinking the Balance Between Good Order and Discipline and the Free Speech
Rights of Retired Military Officers, 12 HARV. NAT’L SEC. J. 288, 317 (2021).
As to determining military retired pay, “[t]he amount of retirement pay a
veteran is eligible to receive is calculated according to the number of years served
and the rank achieved.” Mansell v. Mansell, 490 U.S. 581, 583, 109 S. Ct. 2023,
104 L. Ed. 2d 675 (1989). More specifically, a veteran’s “monthly retired pay” is
determined by multiplying their “retired pay base” by their “retired pay multiplier.”
10 U.S.C. § 7361(a)(1) (army). The United States Department of Defense Finance
and Accounting Service (DFAS) commonly refers to the “retired pay multiplier” as
the “service percent multiplier.”
If, as in this case, a veteran entered active or reserve military service before
September 8, 1980, the “retired pay base” will be based on their final basic monthly 5 In re Marriage of Porter v Porter, No. 102355-3
pay on the date of retirement. 10 U.S.C. § 1406(a), (c)(1)-(2). The “service percent
multiplier” is determined by multiplying 2½ by the veteran’s years of creditable
service. See 10 U.S.C. § 1409(b)(1). According to DFAS, “[e]ach year of active
duty service is worth 2.5 percent toward your service percent multiplier,” so “[a]
retiree with 20 years of service would have a service percent multiplier of 50
percent.” 1 The “service percent multiplier” is capped at 75 percent, which equates
to 30 years or more of creditable service. See 10 U.S.C. § 1409(b)(3).
II. FACTUAL BACKGROUND
In 1976, Porter joined the United States Army and married Huckstadt the
following year. Clerk’s Papers (CP) at 205. Porter served in the military for the
entirety of the marriage, including while he attended medical school for four years.
CP at 24, 99, 205. In November 1994, Porter and Huckstadt divorced after 17 years
of marriage. CP at 205.
The dissolution decree provided that Huckstadt was entitled to a fractional
share of Porter’s military retirement pay. CP at 24-25. The trial court provided two
alternative formulas to determine that share. CP at 24-25. The first alternative
applied if Porter did not receive credit toward his military retirement for his time in
medical school. CP at 24. Under this first scenario, Huckstadt’s share would be
1 See https://www.dfas.mil/retiredmilitary/plan/estimate/. 6 In re Marriage of Porter v Porter, No. 102355-3
determined by the following formula: ½ x (11 years/number of years of creditable
military time toward retirement). CP at 24. The second alternative applied if Porter
did receive such credit. CP at 24-25. Under this second scenario, Huckstadt’s share
would be determined by the following formula: ½ x (15 years/number of years of
creditable military time toward retirement). CP at 24. The dissolution decree,
however, did not specify what point in time the retirement benefits would be
distributed by the court. CP at 24-25.
In 2002, eight years after the divorce, Porter retired from the army at the rank
of lieutenant colonel and entered private practice as a surgeon. CP at 98. In 2003,
the trial court entered an MQCO, which assigned Huckstadt a 30.25 percent interest
in Porter’s disposable military retired pay. CP at 33. This equaled half of the
community portion of the military retirement as required by the dissolution decree.
CP at 98.
In 2009, 15 years after the divorce, and 7 years after entering private practice,
the army involuntarily recalled Porter to active duty to serve in Afghanistan. CP at
98, 164. He served for an additional three years, during which time he was promoted
to the rank of colonel. CP at 98. During Porter’s recall to military service, the
military stopped issuing retirement payments to Porter and Huckstadt. CP at 100,
164.
7 In re Marriage of Porter v Porter, No. 102355-3
In 2012, Porter retired for a second time upon completion of his required
recalled service time. CP at 100. At that time, the DFAS reinstated monthly
retirement payments to Huckstadt at 30.25 percent of Porter’s total monthly
retirement benefit, which had “significantly increased” due to his additional years of
service and rank promotion. CP at 100-01.
III. PROCEDURAL HISTORY
In February 2022, Porter filed a motion to clarify the dissolution decree and
the 2003 MQCO, arguing that Huckstadt’s portion of the pension should not include
the salary increases resulting from his involuntary recall to active duty service. CP
at 85-93. In the alternative, he asked the trial court to vacate or modify the MQCO
and issue a military retired pay division order directing correct payments equaling
one-half of the community portion of the military retired pay to Huckstadt. CP at
95-96.
After a hearing on Porter’s motion, the trial court concluded that Porter’s
retired pay and rank at his second retirement should be used to calculate Huckstadt’s
share of the military pension. CP at 207-09. The court reasoned that as a matter of
law, the intent of the dissolution decree supported the ruling and that Porter’s
previous military service allowed him to be promoted to colonel. CP at 207-08.
Accordingly, the court entered an order adding Porter’s three additional years of
service to the formula in determining Huckstadt’s fractional share, which reduced 8 In re Marriage of Porter v Porter, No. 102355-3
Huckstadt’s share from 30.25 percent to 27.273 percent of the military retirement
pay. CP at 208.
Porter appealed and the Court of Appeals affirmed, holding that “[Porter]’s
salary increases received during the recall to military service were based on about
17 years of community efforts and the salary increases should be used in calculating
[Huckstadt]’s share of the military retirement.” Porter, 27 Wn. App. 2d at 713.
Porter now seeks this court’s review, which we granted. Amicus curiae
Veterans of Foreign Wars (VFW) submitted a brief in support of Porter, which we
accepted.
ANALYSIS
PORTER’S RANK AND SALARY INCREASE EARNED DURING INVOLUNTARY RECALL INTO MILITARY SERVICE ARE NOT PRESUMABLY THE RESULT OF COMMUNITY EFFORTS
Porter argues that the Court of Appeals erred in holding that his rank and
salary increase earned during involuntary recall should be used in calculating the
community portion of his military pension because the “community efforts doctrine”
does not apply under these specific circumstances. Appellant’s Pet. for Rev. by
Wash. State Sup. Ct. (Pet. for Rev.) at 1-2, 7-19. We agree.
A. Standard of Review
Property valuation is a question of fact and is reviewed for substantial
evidence. 9 In re Marriage of Porter v Porter, No. 102355-3
However, “[w]here the relevant facts are undisputed and the parties dispute only the
legal effect of those facts, the standard of review is . . . de novo.” Meadow Valley
Owners Ass'n v. Meadow Valley, LLC, 137 Wn. App. 810, 816, 156 P.3d 240 (2007).
On the other hand, “[a] trial court’s characterization of property is a mixed
question of law and fact.” In re Marriage of Watanabe, 199 Wn.2d 342, 348, 506
P.3d 630 (2022). Like valuation determinations, “[f]actual findings … supporting
the characterization are reviewed for substantial evidence.” Id. “The
characterization of property is reviewed de novo as a question of law.” Id. at 348-
49.
B. Legal Principles
This case is not only about the characterization of property during a
dissolution but also about the valuation of the property. All property, both separate
and community, is before the court for a just and equitable distribution. In re
Marriage of Brewer, 137 Wn.2d 756, 766, 976 P.2d 102 (1999). “Characterization
of property as community or separate is not controlling in [a] division of property
between the parties in a dissolution proceeding, but ‘the court must have in mind the
correct character and status of the property ... before any theory of division is
ordered.’” Id. (footnote omitted) (quoting Blood v. Blood, 69 Wn.2d 680, 682, 419
P.2d 1006 (1966)).
10 In re Marriage of Porter v Porter, No. 102355-3
“Washington courts abide by the general principle that increases in retirement
benefits occurring after separation should not be treated as separate property if the
increase was enhanced by community efforts over many years.” 2 In re Marriage of
Hurd, 69 Wn. App. 38, 46, 848 P.2d 185 (1993), abrogated on other grounds by In
re Est. of Borghi, 167 Wn.2d 480, 219 P.3d 932 (2009); see also In re Marriage of
Chavez, 80 Wn. App. 432, 437-38, 909 P.2d 314 (1996); In re Marriage of Bulicek,
59 Wn. App. 630, 638-39, 800 P.2d 394 (1990). Porter refers to this general
principle as the “community efforts doctrine.”
“Pension benefits are deferred income. As such, pension benefits which
accrue during a term of employment are characterized in the same way as the income
earned during that term of employment.” In re Marriage of Landry, 103 Wn.2d 807,
810, 699 P.2d 214 (1985). Under RCW 26.16.140, “[w]hen spouses or domestic
partners are living separate and apart, their respective earnings and accumulations
shall be the separate property of each.” (Emphasis added.) This statute applies when
there is a permanent separation or a “‘defunct’ marriage,”—that is, a lack of will by
both parties to continue the marital relationship. In re Marriage of Short, 125 Wn.2d
2 Porter cites In re Marriage of Pea, 17 Wn. App. 728, 731-32, 566 P.2d 212 (1977), as the progenitor of the community efforts doctrine. However, this case says nothing about whether increases in retirement benefits earned after separation are presumed to be community property. Rather, it simply held that the wife was entitled to the community portion of the husband’s monthly military retired pay, but not salary increases due to the husband’s service credits earned beyond 20 years, without any further reasoning. Id. Therefore, Pea is not further discussed. 11 In re Marriage of Porter v Porter, No. 102355-3
865, 871, 890 P.2d 12 (1995) (quoting Aetna Life Ins. Co. v. Bunt, 110 Wn.2d 368,
372, 754 P.2d 993 (1988)). On the other hand, earnings and accumulations acquired
during marriage are presumed to be community property. See id. at 870.
Community property is also defined as “all other property acquired by either spouse
after marriage that is not separate property.” Id. at 871 (discussing RCW 26.16.030).
“[I]t is settled in this jurisdiction that a military pension is community property
to the extent that community funds have been invested in it and that it is before the
court for consideration in a dissolution proceeding.” Wilder v. Wilder, 85 Wn.2d
364, 367, 534 P.2d 1355 (1975) (discussing RCW 26.09.080). “If the pension was
accumulated partly prior to marriage and partly after marriage, it is proportionately
classified, with the portion acquired during marriage characterized as community
property.” In re Marriage of Rockwell, 141 Wn. App. 235, 251, 170 P.3d 572 (2007)
(citing Landry, 103 Wn.2d at 810). “Generally, the community share is calculated
by dividing the number of years of marriage (prior to separation) by the total number
of years of service for which pension rights were earned and multiplying the results
by the monthly benefit at retirement.” Id. at 251-52 (emphasis added). “This is
known as the ‘time rule method.’” Id. at 252.
Notably, by calculating the community portion of a pension based on the total
number of years of service and the monthly benefit at retirement, the “time rule”
12 In re Marriage of Porter v Porter, No. 102355-3
method includes retirement benefits earned in the years following permanent
separation, which appears to conflict with RCW 26.16.140.
Bulicek, a 1990 case, is the first decision from our state that explicitly
discussed the rationale behind the community efforts doctrine. There, the parties
were married for 22 years prior to separation, and the husband worked for the same
company during their entire marriage where he accrued a pension. Bulicek, 59 Wn.
App. at 631-32. The husband became eligible for early retirement 4 years after the
parties had separated, but he opted not to retire. Id. at 632. In the dissolution, the
trial court granted the wife a percentage, as-received amount of the husband’s
monthly pension. Id. Under this method, the wife’s monthly payout could increase
after dissolution due to the husband’s prospective pay increases. Id. at 636. The
husband appealed, arguing that this formula adopted by the trial court improperly
allowed the wife to share in postseparation contributions to his pension, which are
his separate property. Id. Instead, he contended that the trial court should have given
a value to the retirement benefits and apportioned them at the time of trial. Id.
The Court of Appeals disagreed, holding that the trial court did not abuse its
discretion in awarding the wife a percentage of the pension on an as-received basis.
Id. at 639. The court reasoned that the parties were married for 22 years and the
husband’s advancements and pay raises “during that time came as a direct result of
community effort and performance.” Id. at 638 (emphasis added). Then, relying on 13 In re Marriage of Porter v Porter, No. 102355-3
In re Marriage of Adams, 64 Cal. App. 3d 181, 134 Cal. Rptr. 298 (1976), the court
went on to presume that “the prospective increase[s] in retirement benefits due to
increased pay after separation is founded on those 22 years of community effort.”
Bulicek, 59 Wn. App. at 638. In Adams, the California court of appeal for the second
district announced the following principle:
When the employed spouse continues working after separation, in many cases the increased retirement benefits will be attributable in part to such spouse’s continued earnings, and in part to the previous community property contributions. For the reasons stated below, the nonemployee spouse should be entitled to a valuation of the community interest at the later date if he or she so desires.
64 Cal. App. 3d. at 186 (emphasis added). Thus, the court in Bulicek affirmed the
formula utilized by the trial court “as a means of recognizing the community
contribution to such [prospective pay] increases.” 59 Wn. App. at 639.
Three years later, in Hurd, the Court of Appeals dealt with the distribution of
a pension governed by the Law Enforcement Officers and Firefighters plan in a 16
year marriage. 69 Wn. App. at 42-44. There, the husband became eligible for
retirement by the date the parties separated; however, shortly after separation, the
husband’s salary increased significantly. Id. at 43. The trial court valued the
community share of the pension based on the husband’s salary prior to separation.
Id. at 44-45. The Court of Appeals reversed, holding that the trial court should have
considered “Mr. Hurd’s higher salary figure in calculating the community share of
14 In re Marriage of Porter v Porter, No. 102355-3
the present value of his monthly pension.” Id. at 46. Relying on Bulicek, the court
reasoned that “[a]lthough a spouse’s earnings following separation are generally
characterized as separate property, Mr. Hurd’s salary increase, received shortly after
separation, should be presumed to be the result of community efforts absent
substantial evidence to the contrary. We find no such contrary evidence here.” Id.
(footnote omitted) (emphasis added).
In 1996, the Court of Appeals in Chavez dealt with the distribution of a
military pension following a 21 year marriage. 80 Wn. App. at 434. There, the
parties’ marriage was dissolved in 1986 and the husband retired from the army in
1993, 7 years later. Id. at 434-35. Due to his 30 years of service, he was entitled to
a pension of 75 percent of his base salary. Id. at 435. The husband challenged the
dissolution decree, which had awarded the wife 50 percent of this pension, arguing
that his salary at retirement should not be used to calculate the wife’s share of the
pension because that salary was different from his salary at the time of divorce. Id.
at 437. The Court of Appeals disagreed, holding that the wife’s share of the pension
should be based on the husband’s salary at the time of his retirement, not at the time
of divorce. Id. at 437-38. Citing Bulicek and Hurd, the court reasoned that the
increases in pension benefits based on the husband’s increased salary were
presumably made possible by community efforts. Id. However, the court was
15 In re Marriage of Porter v Porter, No. 102355-3
careful to note that the wife’s share of the pension should not be increased due to the
additional “service credits” that the husband earned subsequent to the divorce. Id.
In summary, the cases discussed above stand for the proposition that courts
will presume, following a lengthy marriage, that increased monthly retirement
benefits that were earned shortly after separation are a direct result of community
effort and performance. This presumption can be rebutted with substantial evidence
showing that the increased monthly retirement benefits earned after separation falls
within the ambit of RCW 26.16.140. However, none of the cases discussed above
stand for the proposition that this presumption lasts indefinitely or the that “time
rule” method can be based on the monthly benefit amount following a second
retirement, which brings us to this case.
C. The “Time Rule” Method Should Not Be Employed Inflexibly and the “Community Efforts Doctrine” Does Not Apply under the Facts of This Case
Porter argues that the Court of Appeals erred in holding that his salary
increases earned during the recall period are included in calculating the community
portion of his military retirement. Pet. for Rev. at 7. He reasons that the community
efforts doctrine does not apply here because, unlike Bulicek and its progeny, his
increased salary was not earned shortly after separation. See id. at 13-14; Suppl. Br.
of Pet’r/Appellant at 6. We agree.
16 In re Marriage of Porter v Porter, No. 102355-3
In Wilder, a case dealing with the distribution of a military pension, this court
stated that Washington takes a “flexible and … realistic approach to the question of
equitable distribution of pension benefits between divorced spouses.” 85 Wn.2d at
368. Indeed, since not all dissolutions are factually the same, “[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.” Id. at 369. Thus, courts
should exercise caution in applying the community efforts doctrine by paying
particular attention to the facts and circumstances of each case.
Spencer v. Spencer is particularly instructive about how to value Porter’s
postdivorce salary increases because the facts of that case are strikingly similar to
the facts of this case. 197 Vt. 1, 100 A.3d 334 (2014). There, the parties married in
1981 while the husband served in the army, and he retired in 1998, after almost 22
years of service. Id. at 2. In 2000, 2 years after his retirement, the parties divorced
and the decree awarded the wife 41.8 percent of the military pension. Id. However,
in 2009, 11 years after the husband’s retirement and 9 years after the parties’ divorce,
the husband was recalled to serve as a military instructor in the ROTC program at
the University of New Hampshire. Id. He was discharged in 2012, and, due to his
additional 3 years of service, he received an increase in his monthly pension benefit.
Id. The husband filed a motion to amend the decree, arguing that the wife’s payment
17 In re Marriage of Porter v Porter, No. 102355-3
should be calculated based on his completed service at the time of the divorce, not
at his second retirement. Id. at 2-3.
The trial court denied the motion, and the Supreme Court of Vermont reversed
and remanded for an additional hearing as to whether the decree should be reformed
to conform to the parties’ expectations. Id. at 3-6. The court reasoned that the case
before it was not a “typical divorce situation involving the division of a spouse’s
pension who was still employed at the time of the divorce.” Id. at 5. The court
opined that normally in such cases, since the pension’s ultimate value is still
unknown at the time of divorce, the court may “infer an intent that the nonemployed
spouse should benefit from the post-divorce employment because some of the power
to produce the added value was acquired during the marriage.” Id. In a way, this is
quite similar to the community efforts doctrine that Washington has adopted.
However, the court rejected a blind application of that presumption reasoning that
“in these circumstances, where [the] husband has already retired and his pension is
under distribution, pension benefits acquired due to unanticipated post-divorce
service are more like property acquired strictly after the marriage, and therefore not
subject to equitable distribution.” Id. at 6.
Here, the Court of Appeals erred in applying the community efforts doctrine
mechanically to the facts of this case. Bulicek, Hurd, and Chavez are distinguishable
and not controlling because, unlike those “typical divorce” cases, the salary 18 In re Marriage of Porter v Porter, No. 102355-3
increases to Porter’s monthly pension benefit were not earned shortly after the
parties separated, nor were they a direct result of community effort and performance.
Rather, like Spencer, the increase in Porter’s retired pay was earned following an
involuntary recall occurring nearly 18 years after the divorce and 10 years after his
first retirement in 2002, during which time he worked in the private sector. Thus,
like Spencer, the retirement benefits earned during the recall period are more akin to
earnings and accumulations acquired strictly after marriage and are not a direct result
of community effort and performance. Additionally, none of the cases relied on by
Huckstadt or the Court of Appeals purported to hold that the community efforts
doctrine applies indefinitely so long as there is some marital foundation for it. In
fact, to accept that notion would require judges to apply the rule inflexibly, which
contradicts the command laid down by this court in Wilder. Furthermore, extending
the doctrine to these facts would effectively render RCW 26.16.140 meaningless
when applied to pensions, which, as explained above, states that earnings and
accumulations of spouses while “living separate and apart” shall be considered
separate property.
Therefore, we hold that the community efforts doctrine is inapplicable in this
case. The increased pension benefits to Porter’s military retirement were not the
direct result of community effort and performance. Accordingly, Porter’s rank and
19 In re Marriage of Porter v Porter, No. 102355-3
salary at his second retirement cannot be used to calculate the community portion of
the military pension.
D. Neither the Dissolution Decree nor the Parties Contemplated a Second Retirement
The Court of Appeals also held the trial court intended for Huckstadt to
receive one-half of the community portion of the total military retired pay when
issuing the dissolution decree, which included future salary increases stemming from
involuntary recall. Porter, 27 Wn. App. 2d at 711-12. Porter does not assign error
to this portion of the Court of Appeals’ decision; however, it is addressed because,
contrary to the Court of Appeals’ holding, the dissolution decree actually intended
to value the community share of the military pension based on Porter’s monthly
benefit following his first retirement.
The interpretation of a dissolution decree is a question of law that we review
de novo. In re Marriage of Thompson, 97 Wn. App. 873, 877, 988 P.2d 499 (1999).
Decrees are reviewed like a contract and therefore “should be construed as a whole,
giving meaning and effect to each word.” Stokes v. Polley, 145 Wn.2d 341, 346, 37
P.3d 1211 (2001). In doing so, “‘[w]ords should be given their ordinary meaning.’”
Id. at 347 (alteration in original) (quoting Corbray v. Stevenson, 98 Wn.2d 410, 415,
656 P.2d 473 (1982)).
20 In re Marriage of Porter v Porter, No. 102355-3
“Where a judgment is ambiguous, a reviewing court seeks to ascertain the
intention of the court entering the original decree by using general 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.” Id. at 705. “The goal of construing statutory language is to carry out the
intent of the legislature; in doing so, we avoid strained, unlikely, or unrealistic
interpretations.” First Student, Inc. v. Dep’t of Revenue, 194 Wn.2d 707, 711, 451
P.3d 1094 (2019). Similarly, in the context of contracts, “‘[w]hen a provision is
subject to two possible constructions, one of which would make the contract
unreasonable and imprudent and the other of which would make it reasonable and
just, we will adopt the latter interpretation.’” Berg v. Hudesman, 115 Wn.2d 657,
672, 801 P.2d 222 (1990) (quoting Fisher Props., Inc. v. Arden–Mayfair, Inc., 106
Wn.2d 826, 837, 726 P.2d 8 (1986)).
Here, the dissolution decree is ambiguous because it failed to specify at what
point in time the pension was to be distributed. Chavez, 80 Wn. App. at 435. Rather,
it stated only that Huckstadt was entitled to a fractional share of Porter’s military
retirement, which could include his rank and salary at the time of his first retirement
or second retirement following his involuntary recall. CP at 24-25. Thus, we must
21 In re Marriage of Porter v Porter, No. 102355-3
turn to the general rules of construction applicable for writings to determine the
decree’s intended effect.
Initially, the parties agreed to determine the amount of retirement benefits
owed at the time of the divorce. CP at 8. However, the parties and the court were
unable to determine that amount at the divorce trial. Instead, the dissolution decree
reserved that question for a future date because the parties were unsure about
whether Porter would receive credit toward his military retirement for his time in
medical school. CP at 24-25. Indeed, based on the formulas used by the trial court
in the dissolution decree, it is reasonable to assume that the court and parties intended
that the division of military retired pay would be determined following Porter’s first
retirement. Id. This is because, by that point, Porter would have learned whether he
received credit for his time in medical school, which he did. CP at 28-30.
Additionally, while involuntary recall is certainly a possibility for retired service
members, it is unrealistic and unreasonable to believe that the court contemplated or
the parties negotiated for that event, especially given the fact that even in a national
emergency, only a tiny percentage of retired service members would be subject to
involuntary recall.
Accordingly, we hold that the dissolution decree intended to value
Huckstadt’s community share of the military pension based on Porter’s rank and
salary following his first retirement and not his second retirement. 22 In re Marriage of Porter v Porter, No. 102355-3
Porter and amicus argue by implication that federal preemption is applicable
in this case. Pet. for Rev. at 19-23; Suppl. Br. of Pet’r/Appellant at 8-16, Amicus
Curiae Br. of VFW at 5-10. However, “[w]e will not reach a constitutional issue
‘unless absolutely necessary to the determination of the case.’” In re Citizen
Complaint by Stout, 198 Wn.2d 180, 184, 493 P.3d 1170 (2021) (quoting State v.
Hall, 95 Wn.2d 536, 539, 627 P.2d 101 (1981)). Therefore, we decline to reach
Porter’s constitutional arguments. We reverse and remand on nonconstitutional
grounds.
CONCLUSION
We hold that the Court of Appeals erred in applying the community efforts
doctrine under these circumstances. Porter’s rank and salary at his second retirement
cannot be used to calculate Huckstadt’s community share of the military pension.
Additionally, we also hold that the dissolution decree intended that Huckstadt’s
community share of the military pension would be determined based on the value of
Porter’s rank and salary following his first military retirement and not his second
military retirement. We decline to reach the issue of federal preemption.
Accordingly, we reverse the Court of Appeals and remand to the trial court for
further proceedings.
23 In re Marriage of Porter v Porter, No. 102355-3
WE CONCUR.