Laurie Jean Gudnason, V. Helgi Gudnason

• Court: Court of Appeals of Washington
• Decided: October 16, 2023
• Docket: 83845-8
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Marriage of No. 83845-8-I LAURIE JEAN GUDNASON DIVISION ONE Appellant, UNPUBLISHED OPINION and

HELGI GUDNASON,

Respondent.

BIRK, J. — Laurie Gudnason appeals a superior court order vacating a

qualified domestic relations order (QDRO) which had divided her former spouse

Helgi Gudnason’s pension benefits in their dissolution. The superior court ruled

the QDRO did not reflect the intent of the parties’ separation contract and decree

of dissolution, vacated it, and entered a new QDRO carrying out the parties’

original intent. We affirm.

I

On February 15, 2007, Laurie1 petitioned for dissolution of her marriage with

Helgi. They had been married 24 years.

A

In 2008, the parties entered into a separation contract. The parties agreed

they were “desirous of making a full and final settlement, separation, division and

1 We use the parties’ first names for clarity, meaning no disrespect. No. 83845-8-I/2

disposition of their marital and property rights and obligations by means of this

document.” They agreed the contract embodied “in its entirety the agreements of

the parties concerning the disposition of their property . . . and all other issues

between them.” They agreed no modification of the agreement shall be valid

“unless in writing.” They agreed “each spouse will execute any deeds, bills of sale,

assignments, promissory notes, transfers or other instruments and documents

necessary to complete and effectively carry out the terms of this agreement.”

Concerning property division, the parties recited they had “acquired the

property set forth in Exhibits A and B hereof.” (Emphasis omitted.) The contract

provided, “The property described in Exhibit A shall be the sole and separate

property of the wife. The property set forth in Exhibit B shall be the sole and

separate property of the husband.” (Emphasis omitted.) The contract allocated

the marital property to each spouse as their “sole and separate property, free from

any right, claim, title or interest” of the other. The parties warranted to each other

neither had “any right, title or interest in any property of any kind or description

whatsoever, other than as set forth herein.” Specific to retirement benefits, the

contract provided, “Both parties warrant that they have no vested or non-vested

interest in any pension plan, retirement plan, profit-sharing plan or any other

employee benefit other than those benefits as set forth herein.” (Emphasis added.)

The contract allocated to Helgi “[a]ll retirement rights” accrued to him

through employment including his Puget Sound Electric Workers’ (PSEW)

“pension and retirement benefits” (the Plan), except for a portion of these benefits

2 No. 83845-8-I/3

allocated to Laurie. The allocation to Laurie was subject to a calculation approved

in In re Marriage of Bulicek, 59 Wn. App. 630, 632, 639, 800 P.2d 394 (1990). The

formula was as follows:

½ x Total months of x Monthly Benefit at Service during marriage retirement based on electing a Total months of accredited survivor annuity Service at retirement date

The contract stated, “All” rights in the Plan were allocated to Helgi except

those identified as allocated to Laurie, the entirety of Laurie’s allocation was

subject to the Bulicek formula, and the contract made no allocation not subject to

the Bulicek formula. Exhibit B, allocating property to Helgi, included that “[t]he date

of separation to be used is 2/15/07.” Although exhibit A, allocating property to

Laurie, omitted this specific date, exhibit A, like exhibit B, described the Bulicek

formula by reference to the “[t]otal months of Service during marriage,” and both

parties signed the contract in its entirety.2 The provision allocating a portion of

Helgi’s retirement benefits to Laurie concludes, “To be divided by QDRO to be

drafted by husband’s attorney no later than 30 days after entry of the Decree.”

In the terminology of the Employee Retirement Income Security Act of 1974

(ERISA), Pub. L. No. 93-406, 88 Stat. 829, a “domestic relations order” is “any

judgment, decree, or order that concerns ‘the provision of child support, alimony

payments, or marital property rights to a spouse, former spouse, child, or other

dependent of a participant’ and is ‘made pursuant to a State domestic relations law

(including a community property law).’ ” Boggs v. Boggs, 520 U.S. 833, 846, 117

2 In addition, the 2011 QDRO that Laurie drafted used February 15, 2007,

as the end date for her accrual of benefits under the Bulicek formula.

3 No. 83845-8-I/4

S. Ct. 1754, 138 L. Ed. 2d 45 (1997) (quoting 29 U.S.C. § 1056(d)(3)(B)(ii)). Such

an order is “qualified” if it “meet[s] certain requirements” listed in the statute. Id.

(citing 29 U.S.C. § 1056(d)(3)(C)-(E)). A state court order that is “qualified” is

exempt from ERISA’s provisions guarding against the alienation of benefits and

“creates or recognizes an alternate payee’s right to, or assigns to an alternate

payee the right to, a portion of the benefits payable with respect to a participant

under a plan.” Id. at 846-47. In Boggs, the court emphasized the surviving spouse

annuity and QDRO provisions strongly implied that other state-law community

property claims are not consistent with ERISA, and for that reason and others held

ERISA preempted a deceased spouse’s Louisiana law testamentary bequest of

her interest in a participant’s plan benefits. Id. at 844, 848.

On April 25, 2008, the superior court entered a dissolution decree that

incorporated the separation contract by reference. The decree awarded each

spouse as their separate property the property set forth in the separation contract.

Neither party appealed the decree.

B

On May 13, 2008, Helgi’s attorney sent a proposed QDRO (2008 QDRO)

to Laurie’s attorney. The proposal made Laurie the “Alternate Payee," reiterated

the Bulicek formula in section 4, and prescribed the method of payment shall be

made in the form of a “Single Life Annuity based upon the lifetime of the Alternate

Payee.” The 2008 QDRO stated that if Helgi died before payments were initiated

under the order, “the Alternate Payee shall be treated as the surviving spouse of

4 No. 83845-8-I/5

the Participant and shall be entitled to a percentage of the benefits accrued, as

specified in Section 4 of this Order”—i.e., pursuant to the Bulicek formula.

(Emphasis added.) On May 12, 2008, Robert A. Bohrer, an attorney representing

the Plan, addressed a letter to Helgi’s and Laurie’s attorneys stating the 2008

QDRO “complies with statutory, regulatory and Plan requirements.” The parties

never signed the 2008 QDRO.

In 2011, Laurie’s attorney sent Helgi’s attorney a new draft QDRO (2011

QDRO). It stated it had been prepared by a new attorney now representing Laurie.

In its opening paragraph, the 2011 QDRO stated,

Helgi Gudnason has a property interest in the retirement plan identified in section four below. The court awarded a portion of that property interest to Laurie Gudnason in section 12 of exhibit A, which was attached to and incorporated by reference into section 3.2 of the DECREE OF DISSOLUTION in this proceeding. The award of that interest was a part of the overall division of the property of the parties. The court reserved jurisdiction to enter a domestic relations order to govern that property award. This document is the domestic relations order contemplated by the court.

It included the Bulicek formula in paragraph 6 along with other provisions similarly

found in the 2008 QDRO. In addition, paragraph 9 stated, “The Participant shall

elect to receive the Participant’s accrued benefit in the following form: 50% Joint

and Survivor Annuity with the Alternate Payee treated as the surviving spouse.”

Paragraph 10 provided that should Helgi die before Laurie and before his annuity

starting date, the Bulicek formula would not be followed, and instead Laurie would

be treated as Helgi’s surviving spouse “for purposes of the preretirement survivor

annuity provisions of the Plan.” In that scenario, the Plan would pay Laurie the

5 No. 83845-8-I/6

preretirement survivor annuity payable on Helgi’s accrued benefit in the Plan using

the Plan’s benefit formula in effect as of the date of Helgi’s death. Paragraph 11

provided that should Helgi die before Laurie but after Helgi’s annuity starting date,

the Plan would pay the postretirement survivor annuity to Laurie.

On April 20, 2011, Bohrer addressed a letter (Bohrer letter) to Laurie’s

counsel—her new attorney and her original attorney. The letter was not addressed

to Helgi’s counsel. Bohrer stated he had reviewed the 2011 QDRO and when

entered by the court, it would constitute a valid QDRO. Bohrer concluded the

QDRO was capable of being administered, stating, “The instructions for allocation

under Paragraph 6 [i.e., the Bulicek formula] have been supplemented by further

instructions at Paragraph 9 wherein the Participant elects to obtain a future benefit

by way of an election for 50% Joint and Survivor Annuity with the Alternate Payee

named as the surviving spouse.” (Emphasis added.)

Helgi testified he did not receive the Bohrer letter in 2011. A PSEW pension

manager, Melinda Stokes, testified it was not part of her job to send

correspondence like the Bohrer letter to plan participants, but that responsibility

fell to the pension attorneys. In the superior court, Laurie conceded, “It is

undisputed that the husband did not see the letter before 2020 when he went to

the pension office.”

Laurie signed the 2011 QDRO on May 29, 2011, and all parties and the

court signed the 2011 QDRO by November 10, 2011.

6 No. 83845-8-I/7

C

On February 7, 2020, Helgi applied for retirement. Helgi met with Stokes,

who informed him that the 2011 QDRO designated Laurie as his surviving spouse

and his new spouse, Claudia Elsemore, whom he had married in 2016, could not

be substituted. Stokes provided Helgi with a copy of the Bohrer letter. Stokes

testified that on being informed of the information in PSEW’s file, “[Helgi] stated

that that was not what his divorce said, that—you know, that [Laurie] was only

awarded a portion of the benefits earned during the marriage.”

On April 20, 2020, Helgi’s attorney contacted Laurie asking her to sign an

amended QDRO. Helgi’s attorney asserted Helgi had “agreed to grant you a

Separate Interest in his pension wherein he would give you 50% of the pension

earned during marriage.” The Plan obtained information from a consulting actuary,

who explained that under the 2011 QDRO, if Helgi died before Laurie she would

receive a portion of benefits not based on the benefit earned during marriage, but

“based on [Helgi’s] entire benefit.” (Emphasis added.) On December 11, 2020,

through her original counsel, Laurie refused to agree to an amended QDRO,

stating she “would like to maintain the agreement reached at mediation.”

(Emphasis added.) Laurie quoted the benefit allocation of the separation contract

incorporating the Bulicek formula, and stated her position was “[t]he exact form of

how the pension should be divided was agreed upon and reflected in the

Separation Contract.” (Emphasis added.) In support of this position, Laurie quoted

the sections of the separation contract setting forth the Bulicek formula.

7 No. 83845-8-I/8

After the parties were unable to reach an agreement, Helgi moved to have

the 2011 QDRO vacated under CR 60(b)(3) and CR 60(b)(11). In support of the

motion, Helgi testified, “I had provided Laurie Gudnason, my ex-wife, with 50% of

the benefit earned during marriage with an agreed separation date of February 15,

2007.” Helgi asserted, “It was never agreed that Petitioner Laurie Gudnason would

continue to receive my pension benefits for my years of work after our separation

and [dissolution].” Helgi testified he signed the 2011 QDRO believing its

incorporation of the Bulicek formula referred to the “accrued” benefit as meaning

“based on total months of service during the marriage only.” In his motion to

vacate, Helgi argued paragraph 9 of the 2011 QDRO, as explained by the Bohrer

letter, gave Laurie a benefit that was “very different from what was written and

intended in the parties’ Separation Contract.” Helgi acknowledged that under the

Bulicek formula agreed to in the separation contract, Laurie was still entitled to

receive “a prorated share” of the joint and survivor annuity benefit.

In response, Laurie now argued there were “two income streams” at issue.

She argued the “first” of these was the monthly benefit paid during Helgi’s lifetime

and was divided pursuant to the Bulicek formula. But she further argued there was

a “second” income stream consisting of a survivor annuity and “the parties further

agreed that the wife would receive the survivor annuity.” Laurie presented

calculations allocating the entirety of this “second” income stream to herself and

explicitly dissociating from it the parties’ agreement to use the Bulicek formula.

Laurie argued the fundamental principle of contract law that “a party to a contract

8 No. 83845-8-I/9

which he has voluntarily signed will not be heard to declare that he did not read it

or was ignorant of its contents.” Wash. Fed. Sav. & Loan Ass’n v. Alsager, 165

Wn. App. 10, 14, 266 P.3d 905 (2011). She applied this principle to the 2011

QDRO. Laurie argued, “[T]he husband had ample opportunity to read and review

the [2011] QDRO before signing it.” (Emphasis added.) On whether the 2011

QDRO conformed to the separation contract, Laurie argued, “With all due respect,

if [Helgi] believes the [2011] QDRO was ‘incorrectly written’ or doesn’t conform to

the Property Settlement Agreement that is an error he needs to address with his

attorney.”

Laurie’s testimony was that the parties had agreed to give her the survivor

benefit independent of the Bulicek formula as part of the original separation

contract. Laurie testified,

We attended mediation to settle our issues. We settled all of our issues and signed a CR 2A agreement. My husband’s pension was a very important asset. We expressly negotiated that when he retired I would receive a monthly benefit based on the Bulicek formula and when he died I would receive the survivor annuity benefit. He is 11 years older than I am and I fully believed, then and now, that I will outlive him. Thus, the survivor benefit was important and he agreed to give it to me.

We both then signed a Property Settlement Agreement that clearly stated I got the monthly benefit based on the Bulicek formula and when he died I would receive the survivor annuity benefit. The exact form of how the pension should be divided was agreed upon and reflected in the Separation Contract.

(Emphasis added.) Laurie’s declaration then recited the sections of the separation

contract incorporating the Bulicek formula. Laurie further testified the parties

“signed” the 2011 QDRO giving her the survivor annuity, quoting paragraphs 6 and

9 No. 83845-8-I/10

9 from the 2011 QDRO. (Emphasis added.) Laurie did not explicitly argue the

2011 QDRO constituted an express written modification of the original separation

contract.

The superior court granted Helgi’s motion to vacate the 2011 QDRO, under

both CR 60(b)(3) and 60(b)(11). The superior court indicated the 2011 QDRO, as

interpreted by the Bohrer letter, afforded Laurie benefits “contrary to the marital

parties’ Separation Contract.” The superior court entered a new QDRO (2022

QDRO) superseding the 2011 QDRO. The superior court denied Laurie’s motion

for reconsideration and motion for an evidentiary hearing. In denying

reconsideration, the superior court explained,

The QDRO does not reflect the intent of the parties as expressly provided in the separation agreement that contains the bargained for agreement of the parties. CR 60 balances the principles of equity and finality. Fireside Bank v. Askins, 195 W[n].2d 365, 375, 460 P.3d 157 (2020) [(]citing[] Griggs v. Averbeck Realty, Inc.[,] 92 Wn.2d 576, 581, 599 P.2d 1289 (1979)[)]. Fundamentally, a CR 60 proceeding is “[‘]equitable in its character, administered upon equitable principles, and extended upon equitable terms.[’]”[] Id. at 375[ (quoting] Roth v. Nash, 19 W[n].2d 731, 738, 144 P.2d 271 (1943)[)]. This is consistent with a court’s “[‘]inherent power to supervise the execution of judgments[’]” that have prospective effect. Id. at 375[ (quoting] Pac. Sec. Cos. [v]. Tanglewood, Inc., 57 W[n. ]App. 817, 821, 790 P.2d 643 (1990)[)]. The drafter of the QDRO did not accurately reflect the agreed to terms of the separation contract by using language that the drafter, and solely the drafter, was aware that the plan interpreted differently than the terms of the separation contract. Contract law does not preclude a CR 60 motion to vacate a judgment. The order vacating the QDRO does not include any order provisions regarding the separation contract and only provides that a QDRO consistent with the parties’ separation agreement be presented to the undersigned. The parties’ separation agreement remains without any modification by the order vacating the QDRO.

10 No. 83845-8-I/11

The superior court found “no support in the record or separation agreement that

the Bulicek valuation agreed to by the parties included the future earnings of a

subsequent community.” The superior court ruled such an award of future benefits

was not awarded by “agreement of the parties” or “a determination by a trial court.”

Laurie appeals.

II

A trial court’s decision to vacate a judgment is reviewed for an abuse of

discretion. Luckett v. Boeing Co., 98 Wn. App. 307, 309, 989 P.2d 1144 (1999).

A trial court abuses its discretion if its discretion is manifestly unreasonable or

based on untenable grounds or untenable reasons. In re Marriage of Littlefield,

133 Wn.2d 39, 46-47, 940 P.2d 1362 (1997).

The superior court concluded the 2011 QDRO did not reflect the parties’

intent as established in the separation contract. Similarly, Helgi contends “the

[2011] QDRO drafted by Laurie’s attorney contravened [the separation contract],

and the Bohrer Letter confirmed as much.” We agree. Further, because the

separation contract was incorporated by the court as its decree, the 2011 QDRO

additionally contravened the court’s decree. This is because the separation

contract, and therefore the decree, unambiguously divide Helgi’s PSEW benefits

in the manner he urges.

We considered an inverse factual scenario in In re Marriage of Smith, 158

Wn. App. 248, 253, 241 P.3d 449 (2010). There, based on a stipulated decree,

11 No. 83845-8-I/12

the spouse of a participant in a pension plan was awarded “[o]ne-half (1/2) of any

and all rights accrued by virtue of present, past or future employment of the

husband including but not limited to pension, retirement, profit sharing, reserve

vacation, sick leave, insurance coverage, social security benefits and the like for

the length of the marriage.” Id. (emphasis added) (alteration in original). When

the participant retired 10 years later, at the request of his former spouse, the court

entered a domestic relations order dividing the participant’s “monthly pension

payment.” Id. The order limited the former spouse to a half interest based on the

fraction of the number of months of marriage divided by the number of months the

participant worked—i.e., the Bulicek formula—and applied the formula to the

participant’s entire benefit at retirement. Id. The participant in Smith challenged

the order, arguing his former spouse’s share should have been reduced to account

for time they lived in a noncommunity property state, benefits earned in lieu of

Social Security, and salary increases after separation. Id. The participant asserted

the decree’s award of rights accrued by virtue of future employment was

inconsistent with provisions limiting his spouse’s proportional share “for the length

of the marriage” and awarding him property acquired after separation. Id. at 257.

As a result, the participant argued, the decree was ambiguous and amenable to

extrinsic evidence he contended showed the order did not correctly divide his

pension benefits. Id.

We started our analysis from the principle that “[a] property settlement

agreement incorporated into a dissolution decree that was not appealed cannot be

12 No. 83845-8-I/13

later modified unless the court finds the existence of conditions that justify the

reopening of a judgment.” Id. at 256 (citing Byrne v. Ackerlund, 108 Wn.2d 445,

453, 739 P.2d 1138 (1987)). It was in recognition of this principle that the plan

participant in Smith insisted he was not challenging the decree, but arguing only

that the subsequent order misinterpreted the allegedly ambiguous decree. Id.

Because a decree that was not appealed can be modified based on only conditions

justifying the reopening of a judgment, in Smith we looked to the decree, rejected

the plan participant’s assertion that the decree was ambiguous, and rejected his

challenge to the domestic relations order because it “properly interpreted the

decree’s award of retirement benefits . . . as well as Washington law.” Id. at 258.

In In re Marriage of Lee, 176 Wn. App. 678, 690, 310 P.3d 845 (2013), also, we

affirmed a trial court’s entry of a QDRO that followed the separation contract, rather

than one party’s later stated intent.

Laurie does not challenge the 2008 decree, and we apply the same

principles as Lee. The separation contract was authorized by RCW 26.09.070.

Lee, 176 Wn. App. at 689. We review the language of a dissolution decree de

novo. Id. at 688. When an agreement is incorporated in a dissolution decree, the

court must ascertain the parties’ intent at the time of the agreement. Id. A

separation contract incorporated by reference is “merged into the decree.” In re

Marriage of Yearout, 41 Wn. App. 897, 900, 707 P.2d 1367 (1985). “When a

property settlement is approved by a [dissolution] decree, the rights of the parties

rest upon the decree.” Aetna Life Ins. Co. v. Wadsworth, 36 Wn. App. 365, 368,

13 No. 83845-8-I/14

675 P.2d 604, reversed on other grounds, 102 Wn.2d 652, 689 P.2d 46 (1984).

“The provisions as to property disposition may not be revoked or modified, unless

the court finds the existence of conditions that justify the reopening of a judgment.”

RCW 26.09.170(1); see also Millheisler v. Millheisler, 43 Wn.2d 282, 283, 288-89,

261 P.2d 69 (1953). We have applied preclusion principles when parties have

sought to avoid provisions of a separation contract incorporated into a decree.

Kelly-Hansen v. Kelly-Hansen, 87 Wn. App. 320, 334, 941 P.2d 1108 (1997).

“If the language is clear and unambiguous, the court must enforce the

contract as written; it may not modify the contract or create ambiguity where none

exists.” Lehrer v. State, Dep’t of Soc. & Health Servs., 101 Wn. App. 509, 515-16,

5 P.3d 722 (2000). If the decree were ambiguous, we would determine its meaning

as a matter of law 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). We would “ ‘consider the contract as a whole, the subject

matter and objective of the contract, all the circumstances surrounding the making

of the contract, the subsequent acts and conduct of the parties to the contract, and

the reasonableness of the respective interpretations advocated by the parties.’ ”

Paradise Orchards Gen. P’ship v. Fearing, 122 Wn. App. 507, 516, 94 P.3d 372

(2004) (internal quotation marks omitted) (quoting Berg v. Hudesman, 115 Wn.2d

657, 667, 801 P.2d 222 (1990)). Extrinsic evidence could be considered “to help

the fact finder interpret a contract term and determine the contracting parties’

intent,” but not “to show intention independent of the contract.” Brogan & Anensen

14 No. 83845-8-I/15

LLC v. Lamphiear, 165 Wn.2d 773, 775-76, 202 P.3d 960 (2009). “[T]he subjective

intent of the parties is generally irrelevant if the intent can be determined from the

actual words used.” Id. at 776.

Laurie argues the separation contract was ambiguous because it did not

specify how it would treat what Laurie on appeal calls the “second” income stream

consisting of the survivor benefit.3 But it did not need to. The separation contract

gave Helgi as his separate property “[a]ll” retirement rights in the plan, except for

that portion identified as going to Laurie. After allocating to Helgi “[a]ll” rights in the

PSEW plan, the separation contract says “except that [Laurie] shall receive: The

following retirement benefits from [the] plan.” Laurie’s allocation mirrors this

language, indicating she receives as her own separate property “[t]he following

retirement benefits from [the] plan.” Each allocation identically sets out the Bulicek

formula, and applies it embracingly to Helgi’s “Monthly Benefit at retirement based

upon electing a survivor annuity.” Far from leaving open the question whether

3 Laurie has taken three different, inconsistent positions on how and when

she says she was allocated the entirety of the survivor benefit independent of the Bulicek formula. Before Helgi filed his CR 60 motion, Laurie argued that the separation contract directed the allocation of benefits as set forth in the then- governing 2011 QDRO, arguing she wished to “maintain the agreement reached at mediation” and that the separation contract specified the “exact form” of the benefits she should receive. Then, in response to Helgi’s motion to vacate the 2011 QDRO, Laurie contradicted this by arguing in her motion papers, though not in her declaration, the parties “further” agreed she would receive the survivor benefits, treating the 2011 QDRO itself as the controlling contract, and tacitly conceding it altered the original separation contract when her only response to the evident disparity was to argue that issue lay between Helgi and his attorney. Finally, on appeal, Laurie contradicts both of those contentions, arguing for the first time that the separation contract was ambiguous, and the 2011 QDRO was a necessary clarification of the parties’ intent. Laurie never analyzes the language of the separation contract, let alone point to anything in it that allocates to her any share of Helgi’s PSEW pension other than pursuant to the Bulicek formula.

15 No. 83845-8-I/16

Laurie’s allocation based on the Bulicek formula covered benefits payable in

Helgi’s lifetime and survivor benefits, the separation contract expressly references

“a survivor annuity” in the formula.

The separation contract’s language that this allocation was “[t]o be divided

by QDRO,” does not confound the allocation to Laurie governed exclusively by the

Bulicek formula. Washington law recognizes the validity of the separation contract,

but the state-law contract was not effective by itself under ERISA’s anti-alienation

provisions to effectuate its division of the PSEW benefit in the absence of an

ERISA-compliant QDRO. See Boggs, 520 U.S. at 846-48. The most

straightforward reading of the requirement that the retirement benefits were to be

divided by QDRO is that the parties would use a compliant QDRO to effectuate the

property division on which they had just agreed with binding effect under state law.

Two other provisions of the separation contract support this reading directly. One,

the parties agreed they had no retirement benefits “other than those benefits as

set forth herein,” an agreement directly contradicting Laurie’s argument that there

remained a property division to agree on in a further arrangement. And two, the

parties agreed they would “each . . . execute any . . . instruments and documents

necessary to complete and effectively carry out the terms of this agreement.” This

acknowledges the need for “instruments and documents” to carry out the parties’

agreements and describes the operation of a QDRO in doing so. As in Smith, the

decree’s unambiguous disposition of Helgi’s PSEW retirement benefits “cannot be

16 No. 83845-8-I/17

later modified” absent conditions justifying reopening a judgment. 158 Wn. App.

at 256.

Other provisions of the separation contract contradict Laurie’s argument

that the parties intended to make a further distribution or leave any issues for

further discussion. They agreed the separation contract was intended as a “full

and final settlement.” They agreed it embodied “in its entirety the agreements of

the parties concerning the disposition of their property . . . and all other issues

between them.” The separation contract included mutual warranties that neither

party had any property other than as set forth in the agreement. As further context,

the allocation of pension benefits under Bulicek is established as a fair allocation.

In re Marriage of Rockwell, 141 Wn. App. 235, 253-54, 170 P.3d 572 (2007).

Laurie points to no similar body of case law backing an allocation granting her what

the superior court viewed as a grant of future community assets. Laurie does not

point to any extrinsic evidence other than her declaration indicating her own intent,

but “a party’s unilateral or subjective intent as to contract’s meaning” is not

relevant. Hearst Commc’ns, Inc. v. Seattle Times Co., 154 Wn.2d 493, 503, 115

P.3d 262 (2005). The separation contract discloses an unambiguous intent to

distribute the entirety of the marital property. That distribution granted to Helgi all

rights in the PSEW plan, except for a portion granted to Laurie governed by the

Bulicek formula.

Laurie alternately argues that the 2011 QDRO should be viewed as a new

contract granting her rights in the PSEW pension. Even assuming the parties

17 No. 83845-8-I/18

could modify a property disposition ordered by the court in such manner, the

circumstances still do not support this argument. The 2011 QDRO stated it was

intended to govern “that property award” which the trial court had already made in

the decree, and that it constituted the order “contemplated by the court.” It

incorporated the Bulicek formula to divide Helgi’s “monthly benefit.” The original

separation contract applied that formula to Helgi’s “Monthly Benefit at retirement

based on electing a survivor annuity,” whereas the 2011 QDRO separately

provided Helgi “shall elect” to receive his “accrued benefit” in the “form” of a joint

and survivor annuity “with the Alternate Payee treated as the surviving spouse.”

The 2011 QDRO was ambiguous in that it stated it was intended to carry out the

intent of the decree, but the Plan’s interpretation signaled a different result. Having

the Bohrer letter, Laurie was aware of the discrepancy. As the superior court ruled,

“The drafter of the [2011] QDRO [Laurie] did not accurately reflect the agreed to

terms of the separation contract by using language that the drafter, and solely the

drafter, was aware that the plan interpreted differently than the terms of the

separation contract.” This supports construing the ambiguity in the 2011 QDRO

against Laurie as the drafter. Cronin v. Cent. Valley Sch. Dist., 23 Wn. App. 2d

714, 756, 520 P.3d 999 (2022).

The superior court based its ruling in part on an analysis of ERISA’s

protections for spousal rights, and the parties disagree on whether their respective

QDROs violate that law. ERISA does not determine the parties’ state law property

disposition. It is undisputed any of the orders at issue—Helgi’s proposed 2008

18 No. 83845-8-I/19

QDRO, the 2011 QDRO, and the 2022 QDRO—would have been acceptable to

the Plan and, according to the Plan, could be implemented consistent with ERISA.

The parties rely on Carmona v. Carmona, 603 F.3d 1041, 1057-59 (9th Cir. 2010),

which held a state court could not, even through a QDRO, reassign a survivor

annuity payment after the accrued benefit had vested and been reduced to an

annuity following the participant’s retirement and death. At the time of the superior

court ruling under review, Helgi had neither retired nor died, and his accrued

benefit had not been reduced to an annuity actuarially based on his, Laurie’s, or

Claudia’s lifetime. Carmona is inapplicable. To the extent of the Plan’s

representations, ERISA would permit a property disposition in this case either

according to the original separation contract and decree or according to the 2011

QDRO. The only question, therefore, is which of those dispositions is appropriately

enforced as a matter of Washington law. We find no abuse of discretion in the

superior court’s ruling it was the former.

The court may relieve a party from a final judgment for “[a]ny other reason

justifying relief from the operation of the judgment.” CR 60(b)(11). This rule should

be confined to situations involving extraordinary circumstances not covered by any

other section of the rule. Gustafson v. Gustafson, 54 Wn. App. 66, 75, 772 P.2d

1031 (1989). For the first time on appeal, Laurie argues the superior court erred

by relying on CR 60(b)(11) on the ground that if Helgi believed Laurie engaged in

misconduct by failing to disclose the Bohrer letter, he needed to seek relief under

19 No. 83845-8-I/20

CR 60(b)(4). Because Laurie did not make this argument before the superior court,

we decline to address this claimed error under RAP 2.4(a). Roberson v. Perez,

156 Wn.2d 33, 39, 123 P.3d 844 (2005).

Helgi relies on the fact Laurie never provided a copy of the Bohrer letter to

Helgi or his attorney. The superior court found, “It is extraordinary that neither

[Bohrer] nor the [Plan] provided a copy of the 2011 letter to Helgi Gudnason. It is

further extraordinary due to the fiduciary obligation and a duty of good faith and

fair dealing owed under In re Marriage of Sievers, 78 Wn. App. 287, 311[, 897 P.2d

388] (1995).” In Sievers, we held a party to a property settlement agreement owes

a fiduciary obligation and duty of good faith and fair dealing to attempt to draft

formal contract language that will honor that agreement. Id. We further held any

deliberate effort to draft language intended to subvert the agreement is a breach

of the fiduciary obligations of marriage and a violation of the duties of good faith

and fair dealing. Id.

“Spouses owe each other ‘the highest fiduciary duties.’ ” In re Marriage of

Lutz, 74 Wn. App. 356, 369, 873 P.2d 566 (1994) (quoting Peters v. Skalman, 27

Wn. App. 247, 251, 617 P.2d 448 (1980)). Spouses owe a duty to one another not

only to enter into agreements in good faith but also to deal with each other fairly

so that each may obtain the benefit of the other’s performance. In re Marriage of

Sanchez, 33 Wn. App. 215, 217-18, 654 P.2d 702 (1982). This duty does not

cease during dissolution. Id. at 218. This court has previously expressed

skepticism of negotiations unaccompanied by full disclosure of material facts in

20 No. 83845-8-I/21

dissolution, observing, “The trend has been toward requiring a duty to disclose in

commercial transactions, even though there is an absence of a fiduciary

relationship, particularly if one of the parties has superior knowledge of business

affairs.” Seals v. Seals, 22 Wn. App. 652, 655-56, 590 P.2d 1301 (1979)

(emphasis added).

In Barr v. MacGugan, the court held an attorney suffering from severe

clinical depression interfering with his ability to comply with a court order

constituted an extraordinary circumstance under CR 60(b)(11). 119 Wn. App. 43,

45, 48, 78 P.3d 660 (2003). The plaintiff’s attorney failed to respond to the

defendant’s discovery requests, and then failed to comply with an order compelling

discovery responses. Id. at 45. The plaintiff had returned draft responses to

discovery requests to her attorney and left multiple phone messages at his office,

but she never received any response. Id. On the defendant’s motion, the trial

court dismissed the plaintiff’s lawsuit with prejudice. Id. The plaintiff successfully

moved to vacate the order of dismissal after learning her attorney had been

suffering from severe clinical depression. Id. Barr upheld the vacatur, reasoning

the irregularities that affected the trial court proceedings “were entirely outside the

control of the plaintiff, the defendant, and the court.” Id. at 48. Barr noted the

plaintiff diligently provided information to her attorney and made follow-up inquiries,

but through no fault of her own was unaware of her attorney’s disability, and the

defendant did not show with any specificity how he would be prejudiced by

reinstatement. Id.

21 No. 83845-8-I/22

In Topliff v. Chicago Insurance Company, the court held the failure of

process to be forwarded to the defendant constituted an extraordinary

circumstance justifying relief to vacate a default judgment under CR 60(b)(11). 130

Wn. App. 301, 307, 122 P.3d 922 (2005). The plaintiffs properly served the

defendant insurance company, but the insurance commissioner neglected to notify

the defendant by forwarding process. Id. at 305. The insurance commissioner’s

failure deprived the defendant of the opportunity to respond to the lawsuit. Id. The

trial court entered a default judgment for over $2 million, but later vacated the

default judgment under CR 60(b)(11). Id. at 304. Topliff affirmed the order

vacating the default judgment, reasoning the insurance commissioner’s

inexcusable neglect justified relief under CR 60(b)(11). Id. at 306.

Sievers, Barr, and Topliff share commonalities with this case. The opening

paragraph of the 2011 QDRO recited that the court had already “awarded” an

interest in the Plan to Laurie in its decree, the court reserved jurisdiction to enter

an order governing “that property award,” and “[t]his document” is the order

“contemplated by the court.” The 2011 QDRO went on to incorporate the Bulicek

formula. Contrary to Laurie’s arguments in this court, the 2011 QDRO stated on

its face that it was intended to implement the award the court had already made,

and as discussed above, the court had no authority apart from the power to reopen

judgments to modify that award. We do not equate Laurie’s conduct to the

intentional concealment of marital property at issue in Sievers. But compared to

Helgi, Laurie had “superior knowledge,” Seals, 22 Wn. App. at 656, at the time of

22 No. 83845-8-I/23

the entry of the 2011 QDRO, and this procedural anomaly is a factor supporting a

conclusion of extraordinary circumstances.

Helgi brought the error of the 2011 QDRO to the parties’ and the court’s

attention before any benefits were paid from the Plan. The superior court’s order,

as in Barr, granted prospective relief only. And as in Topliff, the superior court

reasonably found the failure of the pension attorneys to send their own plan

participant the Bohrer letter supported extraordinary circumstances. Laurie argues

that the Plan’s neglect to send the letter to Helgi was not her fault. But that is not

the inquiry. It remains a circumstance working a hardship on Helgi that was

“entirely outside the control of the plaintiff, the defendant, and the court.” Barr, 119

Wn. App. at 48. The superior court did not abuse its discretion in concluding this

case presents a unique combination of extraordinary circumstances bringing it into

the scope of CR 60(b)(11). Because we conclude relief was appropriate under

that rule, we do not reach any other issues.

Affirmed.

WE CONCUR:

__________________________

23 No. 83845-8-I In the Matter of the Marriage of Gudnason

DÍAZ, J. (dissenting) — I agree with the majority that this matter is

fundamentally an issue of contract interpretation, and that the Gudnasons’ 2008

property settlement agreement (PSA) and the signed 2011 qualified domestic

relations order (QDRO or DRO) are unambiguous. However, I respectfully

disagree with their conclusion that the proper interpretation of those documents

favors Helgi Gudnason.1 The PSA was silent about who the survivor/payee of

Helgi’s death benefits was, and expressly deferred the final “division” of Helgi’s

pension benefits to a future instrument to be executed by the parties, which would

“complete” the resolution of their dissolution. The DRO is that instrument, and it

clearly states that Lauri should be treated as the surviving spouse of his death

benefits. Our analysis should end there.

I further respectfully disagree with the majority’s conclusion that Lauri’s

failure to forward to Helgi the qualifying “Bohrer” letter, which merely reiterated

verbatim language from the DRO and was available to Helgi for years, constitutes

exceptional circumstances under CR 60(b)(11).

Finally, I write separately because I am concerned that, under the majority’s

reasoning, any QDRO may be reopened and vacated simply because an unhappy

litigant belatedly prevails on an alternate interpretation of a PSA and needs only to

1 Because the parties share a last name, we will refer to them by their first names

for clarity. No disrespect is intended. No. 83845-8-I/2 (DÍAZ, J., dissenting)

point, even many years later, to a minor ministerial “anomaly” occurring in a heavily

negotiated, unhurried, non-coercive resolution. Majority at 22.

For these reasons, I respectfully dissent.

I. ANALYSIS

A. Supplemental Statement of the Standard of Review

We review a trial court’s decision to vacate a judgement for abuse of

discretion. Morin v. Burris, 160 Wn.2d 745, 753, 161 P.3d 956 (2007). A trial court

abuses its discretion whenever it “bases its ruling on an erroneous view of the law.”

Gildon v. Simon Prop. Grp., Inc., 158 Wn.2d 483, 494, 145 P.3d 1196 (2006). The

interpretation of contractual language used in a DRO or marriage dissolution

decree is a question of law and therefore subject to de novo review. In re Marriage

of Smith, 158 Wn. App. 248, 255-56, 241 P.3d 449 (2010).

B. Supplemental Statement of General Principles of Contract Interpretation

When parties dispute the meaning of an agreement incorporated by a

dissolution decree, “the court must ascertain and effectuate their intent at the time

they formed the agreement.” Boisen v. Burgess, 87 Wn. App. 912, 920, 943 P.2d

682 (1997). “The intent of the parties is determined by examining their objective

manifestations, including both the written agreement and the context within which

it was executed.” Id. We interpret contracts in a manner that will not render

provisions of the contract meaningless. GMAC v. Everett Chevrolet, Inc., 179 Wn.

App. 126, 135, 317 P.3d 1074 (2014).

When an instrument is “[c]lear and unambiguous” it will be enforced as

written. Grey v. Leach, 158 Wn. App. 837, 850, 244 P.3d 970 (2010). “‘A contract

2 No. 83845-8-I/3 (DÍAZ, J., dissenting)

provision is ambiguous when its terms are uncertain or when its terms are capable

of being understood as having more than one meaning.’” Martinez v. Miller Indus.,

Inc., 94 Wn. App. 935, 944, 974 P.2d 1261 (1999) (quoting Mayer v. Pierce County

Med. Bureau, 80 Wn. App. 416, 421, 909 P.2d 1323 (1995)). But, “ambiguity will

not be read into a contract where it can reasonably be avoided.” McGary v.

Westlake Inv’rs, 99 Wn.2d 280, 285, 661 P.2d 971 (1983). When clauses appear

to conflict, our aim is to harmonize them in order to give effect to all provisions in

the contract. Nishikawa v. U.S. Eagle High, LLC, 138 Wn. App. 841, 849, 158 P.3d

1265 (2007).

As to further principles of interpreting a contract, we give words their

“ordinary, usual, and popular meaning.” Hearst Commc’ns, Inc. v. Seattle Times

Co., 154 Wn.2d 493, 504, 115 P.3d 262 (2005). Where a contract contains

conflicting general and specific provisions, “specific statements control over the

more general provision[s].” Smith, 158 Wn. App. at 258.

When parties execute multiple instruments together, we construe them

together. In re Estates of Wahl, 99 Wn.2d 828, 831, 664 P.2d 1250 (1983).

“Generally, when two contracts are in conflict, the legal effect of a subsequent

contract made by the same parties and covering the same subject matter, but

containing inconsistent terms, ‘is to rescind the earlier contract. It becomes a

substitute therefor, and is the only agreement between the parties upon the

subject.’” Higgins v. Stafford, 123 Wn.2d 160, 165-66, 866 P.2d 31 (1994) (quoting

3 No. 83845-8-I/4 (DÍAZ, J., dissenting)

Bader v. Moore Bldg. Co., 94 Wash. 221, 224, 162 P. 8 (1917)).

C. Discussion

1. The PSA and DRO can and should be read harmoniously

We start from the fundamental principle that “a party to a contract which he

has voluntarily signed will not be heard to declare that he did not read it, or was

ignorant of its contents.” Nat’l Bank of Wash. v. Equity Inv’rs, 81 Wn.2d 886, 912,

506 P.2d 20 (1973). Here, the parties signed both the PSA (which the court

incorporated by reference into a dissolution decree) and the DRO.

The majority interprets the two documents such that the DRO contravenes

or is otherwise inconsistent with the intent of the PSA and, on that basis, sets the

DRO aside. Majority at 11. The majority has concluded that the DRO modifies the

decree, which, under its reading of Smith, is not permitted. Id. at 12-13.

I would instead harmonize the two instruments by giving force to language

in the PSA that anticipates work “to be” done by a future instrument to “complete”

their agreement.

Specifically, the PSA expressly states that the pension was “[t]o be divided

by QDRO.” This prospective language, in the future tense, indicates that a further

instrument, to be drafted in the future, would “divide” the pension. “Divide”

ordinarily means “to separate into parts or portions and give out in shares.”

WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 663 (2002); In re Estate of

Gillespie, 12 Wn. App. 2d 154, 168, 456 P.3d 1210 (2020) (an undefined,

nontechnical term may be determined from a standard English dictionary). Giving

this provision its ordinary meaning, the PSA manifests the Gudnasons’ intention to

4 No. 83845-8-I/5 (DÍAZ, J., dissenting)

defer the final “separation” or allocation of the pension to the DRO.

The PSA further indicates that the Gudnasons did not intend for it to serve

as a complete and final memorialization of their agreement. The Gudnasons

agreed in the PSA to “each . . . execute any . . . instruments and documents

necessary to complete and effectively carry out the terms of this agreement.”

(Emphasis added.) “Complete” means “to make whole, entire, or perfect.”

WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 465 (2002). On its face, the PSA

thus acknowledges the fact that the parties had left some terms of their agreement

incomplete, and obligated the Gudnasons to execute further instruments to

complete it, i.e., the DRO.

Furthermore, section five in Exhibit B of the PSA begins with general

language awarding “all retirement rights” to Helgi, “except that [Laurie] shall

receive: The following retirement benefits from . . . [the] plan.” The PSA then lays

out a formula to calculate Helgi’s “Monthly Benefit at retirement based upon

electing a survivor annuity” and concludes with the “[t]o be divided” language. Id.;

see also In re Marriage of Bulicek, 59 Wn. App. 630, 637, 800 P.2d 394 (1990)

(establishing the formula as one of many fair divisions of pension benefits). And it

is at this point that the majority and I diverge.

There is no survivor benefit formula identified and no survivor/payee

identified either. Counsel for Helgi conceded as much. Wash. Ct. of Appeals oral

argument, In re Marriage of Gudnason, No. 83845-8-I (Apr. 20, 2023), at 14 min.,

22 sec., through 15 min., video recording by TVW, Washington State’s Public

Affairs Network, https://tvw.org/video/division-1-court-of-appeals-2023041261. In

5 No. 83845-8-I/6 (DÍAZ, J., dissenting)

other words, the division of the survivor benefit (both the formula and the recipient)

in the 2011 DRO does not contradict the PSA because the PSA does not allocate

any survivor benefit to any party or non-party. There is nothing to contradict.

Moreover, when parties execute multiple instruments together, we must

construe them together. Wahl, 99 Wn.2d at 831. Here, when the parties filed their

DRO with the court over 10 years ago, they referenced the dissolution decree and

attached the incorporated PSA. This fact provides clear direction to this court to

construe their intent by considering the entire package the trial court blessed. Only

by interpreting the PSA as leaving the survivor benefit undefined (both the formula

and the beneficiary) can this court “harmoniously” construe the PSA and DRO

together and give full force to both instruments as executed by the parties.

Nishikawa, 138 Wn. App. at 849.

In setting aside the 2011 QDRO, the majority posits an interpretation of the

PSA that conflicts with various standard principles of contract interpretation.

First, the majority’s interpretation relies on the general language in the PSA

giving Helgi “‘[a]ll’ rights in the PSEW plan.” Majority at 15. Similarly, the majority

points to boilerplate language that the PSA was intended as a “‘full and final

settlement’” and “embodied ‘in its entirety the agreements of the parties concerning

the disposition of their property . . . and all other issues between them.’” Id. at 16.

But following Smith, the specific provision dividing the pension benefits should

control over this more general language. 158 Wn. App. at 258. Stated otherwise,

the specific language of section five in Exhibit B of the PSA indicates that the

parties’ intent was to expressly dispose of the “monthly benefit” according to the

6 No. 83845-8-I/7 (DÍAZ, J., dissenting)

Bulicek formula, but then further “divide[]” the benefits from the PSEW plan through

a forthcoming DRO.

In response, second, the majority argues that the “to be divided” language

“does not confound the allocation to Laurie.” Majority at 15. The majority interprets

the term “divide” to mean “effectuate” their prior agreement and, in support, relies

on the provision that commits the parties to “‘execute any . . . instruments and

documents necessary to complete and effectively carry out the terms of this

agreement.’” Id. at 16 (emphasis added).

As a preliminary matter, the majority’s interpretation emphasizes the term

“effectively carry out” to the detriment of the phrase as a whole. That is, the

majority’s analysis does not allow for a non-redundant, independent meaning of

the term “complete” in the phrase “complete and carry out.” The plain language

meaning of “complete” suggests that the PSA is incomplete or the parties left some

terms open for future perfection. We should not render the term “complete”

meaningless by conflating it with mere execution. GMAC, 179 Wn. App. at 135.

Further, I respectfully submit that the most “straightforward” reading of “to

be divided” is not “to effectuate” or carry out anything because such an

understanding attributes an unusual meaning to “divide,” which ordinarily indicates

a “separation” or allocation of some portion of some thing. Majority at 16. The

majority’s interpretation runs against the mandate to give words their ordinary and

common meaning. Hearst Commc’ns, 154 Wn.2d at 504.

Third, the majority further faults Laurie for failing to provide extrinsic

evidence supporting her interpretation of the PSA. Majority at 17. However, as

7 No. 83845-8-I/8 (DÍAZ, J., dissenting)

argued supra, the plain language of the PSA unambiguously deferred the final

division of the pension to the DRO and its “intent can be determined from the actual

words used.” Brogan & Anensen LLC v. Lamphiear, 165 Wn.2d 773, 776, 202

P.3d 960 (2009). And thus, Laurie’s “subjective intent . . . [was] generally

irrelevant” and she had no obligation to provide extrinsic evidence.2 Id.

In short, the manifest intention of the parties, when the PSA and DRO are

construed together, was to divide the pension through a DRO and the DRO

expressly names Laurie as the surviving spouse. Respectfully, the analysis should

have ended there.

2. Failure to forward the Bohrer letter does not constitute exceptional circumstances under CR 60(b)(11)

Relief under CR 60(b)(11) “‘should be confined to situations involving

extraordinary circumstances not covered by any other section of the rule.’” In re

Marriage of Yearout, 41 Wn. App. 897, 902, 707 P.2d 1367 (1985) (quoting State

v. Keller, 32 Wn. App. 135, 140, 647 P.2d 35 (1982)). “Such circumstances must

relate to irregularities extraneous to the action of the court or questions concerning

2 Even if we were to examine extrinsic evidence, it is telling that Helgi’s draft 2008

DRO (unsigned by the parties) would have allocated all potential disability payments to himself. CP 102 (“If the participant becomes disabled and begins receiving Disability Retirement payments from the Plan, such benefits are the separate property of the Plan Participant.”). There is no reference to a disability payment in the PSA and yet, in 2008, Helgi appears to view this as an open issue to be revisited when they execute a DRO. Furthermore, in that 2008 draft DRO, Helgi claims the entirety of the disability benefit from his plan need not be subject to a Bulicek division, suggesting that the formula applied only to the monthly benefit, not to “all pension benefits” as the majority suggests. In short, like the disability benefit, the survivor benefit is a benefit contained within the pension, but is not expressly allocated to either party in the PSA, and is not covered by the Bulicek formula.

8 No. 83845-8-I/9 (DÍAZ, J., dissenting)

the regularity of the court’s proceedings.” Id. In other words, CR 60(b)(11) should

be applied “sparingly,” again, only to situations “‘involving extraordinary

circumstances not covered by any other section of the rules.’” In re Marriage of

Knutson, 114 Wn. App. 866, 872-73, 60 P.3d 681 (2003) (internal quotation marks

omitted) (quoting In re Marriage of Irwin, 64 Wn. App. 38, 63, 822 P.2d 797 (1992)).

In Knutson, this court found that a trial court abused its discretion when it

granted a husband’s motion to vacate under CR 60(b)(11), which allowed him to

seek to modify a dissolution decree “dividing the marital assets in a manner [he

claimed was] consistent with the intent of the parties as of the time of trial,”

although “[n]either party appealed the decree,” and “[b]oth parties were unhurried

in processing the QDRO while the . . . plan fluctuated in value.” Id. at 873. In

finding error, this court emphasized that the husband himself “did not appeal the

decree, remained silent for more than a month after [his former wife] filed the

QDRO, and took no action until more than three months after the trial court entered

the decree.” Id. at 873-74.

The trial court’s order granting Helgi’s motion to vacate under CR 60(b)(11)

relied heavily on the fact that Laurie did not forward to Helgi the qualifying letter

from the pension plan (the “Bohrer letter”), which only she received. The majority

agrees and, pointing to a fiduciary obligation and duty of good faith and fair dealing

owed by Laurie to Helgi, holds that “Laurie had ‘superior knowledge’ . . . at the

time of the entry of the 2011 QDRO, and this procedural anomaly is a factor

supporting a conclusion of extraordinary circumstances.” Majority at 19-22

(quoting Seals v. Seals, 22 Wn. App. 652, 656, 590 P.2d 1301 (1979)) (emphasis

9 No. 83845-8-I/10 (DÍAZ, J., dissenting)

added). I respectfully disagree.

First, Laurie did not have “superior knowledge” simply based upon

possession of the 2011 version of the Bohrer letter. In Seals, one spouse

fraudulently failed to disclose the utter existence of substantial community property

in a dissolution action, and affirmatively asserted that property’s “nonexistence” in

response to discovery. 22 Wn. App. at 654, 656.

Here, Helgi was not ignorant of the underlying property interest at issue or

the nature of this document. Indeed, as his counsel acknowledged at oral

argument, he knew what a qualifying letter was years before the Bohrer letter and,

in fact, his counsel had a role in soliciting an earlier version of it. Gudnason, Wash.

Ct. of Appeals oral argument, supra, at 8 min., 20 sec., through 8 min., 53 sec.

Specifically, after the parties signed the PSA, as required, Helgi’s counsel drafted

a DRO and submitted it for approval to his pension administrators, who in turn sent

him a qualifying letter. The parties never signed this draft DRO, but it shows that

Helgi was aware of the concept of a qualifying letter, what its contents generally

were, when one would be issued, and the procedures for obtaining one.

Moreover, as his counsel also acknowledged at oral argument, Helgi had

access to the 2011 Bohrer letter for over 8 years before bringing this action.

Gudnason, Wash. Ct. of Appeals oral argument, supra, at 10 min., 43 sec. through

10 min., 50 sec. At any time, he could have requested a copy from the pension

administrator at his work place. Id. And there is nothing in the record to suggest

that, other than her receipt of the letter in 2011, Laurie had any greater access

than he did to the plan or other business records at any point. These facts stand

10 No. 83845-8-I/11 (DÍAZ, J., dissenting)

in great contrast to Seals, where the husband did have superior access to the

business records and then actively concealed the community property. 22 Wn.

App. at 656.

More substantively, the Bohrer letter told Helgi nothing more than was

contained in the DRO, which he himself signed. The purpose of a qualifying letter

is to inform the parties whether or not the DRO they signed is capable of being

administered (or “qualified”), subject to constraints imposed by federal law. 29

U.S.C. § 1056(3)(A) & (C)-(D) (listing ministerial requirements to meet

qualification); Metropolitan Life Ins. Co. v. Wheaton, 42 F.3d 1080, 1084 (7th Cir.

1994) (“The purpose [of a DRO and qualifying letter] is to reduce the expense of

ERISA plans by sparing plan administrators the grief they experience when

because of uncertainty concerning the identity of the beneficiary they pay the

wrong person, or arguably the wrong person, and are sued by a rival claimant.”).

Comparing the language of the letter and the 2011 QDRO, the Bohrer letter

does not purport to do more than this ministerial action. The letter states:

The Order is capable of being administered. The instructions for allocation under Paragraph 6 have been supplemented by further instructions at Paragraph 9 wherein the Participant elects to obtain a future benefit by way of an election for 50% Joint and Survivor Annuity with the Alternate Payee [Laurie] named as the surviving spouse.

(Emphasis added.) For comparison, the letter quotes nearly word-for-word the

language in section 9 of the 2011 DRO:

The Participant shall elect to receive the Participant’s accrued benefit in the following form: 50% Joint and Survivor Annuity with the Alternate Payee [Laurie] treated as the surviving spouse.

Helgi contends that, without the Bohrer letter, section 9 can “be interpreted either

11 No. 83845-8-I/12 (DÍAZ, J., dissenting)

way.” Gudnason, Wash. Ct. of Appeals oral argument, supra, at 11 min., 36 sec.,

through 12 min., 5 sec. This assertion flies in the face of the plain language of the

DRO, which the letter quoted verbatim.

In short, I would not conclude, as does the majority, that Laurie had

“superior knowledge” by virtue of possessing the Bohrer letter because Helgi had

the same information, as he (presumably) read and signed the DRO itself.

Other factors also weigh against finding “extraordinary circumstances” here.

Helgi does not allege that he signed the DRO under coercion or was hurried in any

way. As in Knutson, Helgi considered the DRO for four months—a document

which was merely six pages long—was represented by counsel, and freely signed

it. 114 Wn. App. at 873. Also, as in Knutson, Helgi did not appeal the entry of the

QDRO, “remained silent” and “took no action” for nearly a decade before bringing

the present action. Id. at 873-74.

At the end of the day, this case is most similar to In re Marriage of Tang, 57

Wn.App. 648, 789 P.2d 118 (1990). There, a wife sought to have a dissolution

decree vacated because the decree “failed to list, characterize, and evaluate”

certain items of property, and because it “left the parties as tenants in common of

most of their property.” Id. at 649-50. The trial court granted the request and, on

appeal, the wife argued, inter alia, that the trial court’s order should be upheld

under CR 60(b)(11). Id. at 650-51 & 655. This court reversed and reinstated the

decree, holding that relief under CR 60(b)(11) “has previously been invoked in

unusual situations which typically involve reliance on mistaken information” Id. at

656 (emphasis added). This court concluded that an incomplete enumeration of

12 No. 83845-8-I/13 (DÍAZ, J., dissenting)

the property that is later unpalatable to one side does “not justify relief under CR

60(b)(11).” Id.

The facts here present a similar situation. Taking him at face value, Helgi

simply may have relied on a mistaken belief, namely, that he was signing the same

or a similar DRO as in 2008, believing the 2011 DRO incorporated his

understanding of the breadth of the Bulicek formula set out in 2008. As in Tang, I

respectfully submit that a subjective misunderstanding about the words on the

page that you sign, followed by regret at the result, are not “‘extraordinary’”

circumstances and do not justify relief under CR 60(b)(11). 57 Wn. App. at 655

(internal quotation marks omitted) (quoting Yearout, 41 Wn. App. at 902)).

Finally, even the majority does not equate Laurie’s conduct to the intentional

concealment of marital property, and it implicitly acknowledges that it was the

pension plan’s responsibility to send the Bohrer letter to Helgi’s counsel. Majority

at 22. Despite all this, the majority holds that it was an “anomaly” that Laurie

happened to have the qualifying letter, and that that anomaly met the demanding

vacatur standards of CR 60(b)(11). Id. I respectfully submit that a ministerial

“anomaly” does not rise to the level of “an irregularit[y] extraneous to the action of

the court [or an irregularity in] the court’s proceeding,” and the trial court abused

its discretion in finding so. Yearout, 41 Wn. App. at 902.3

3 The majority also cites to Barr v. MacGugan, 119 Wn. App. 43, 45-48, 78 P.3d

660 (2003), where a plaintiff was effectively deprived counsel because her attorney suffered from “severe clinical depression” and failed to respond to discovery requests, and Topliff v. Chicago Ins. Co., 130 Wn. App. 301, 304-06, 122 P.3d 922 (2005), where a defendant received a default judgment for $2,186,863.10 after they were deprived “the basic pillars of due process” because his counsel failed to forward service. Majority at 20-21. I would not conclude, as does the majority,

13 No. 83845-8-I/14 (DÍAZ, J., dissenting)

II. CONCLUSION

For the foregoing reasons, I respectfully dissent from the majority opinion.

that the facts of the present case approach the exceptional circumstances of either case. In both of these cases, the party seeking relief under CR 60(b)(11) suffered a fundamental procedural defect in the prior judicial proceeding: the right to assistance of counsel in Barr and the right to notice in Topliff. Those cases presented circumstances beyond the parties’ control and created “irregularities in the proceedings,” as required by CR 60(b)(11). Yearout, 41 Wn. App. at 902. For the reasons above, no such irregularities occurred here.