Court: Court of Appeals of Washington; December 23, 1999; Washington; State Appellate Court
An award of half the community interest in a pension constitutes a property interest rather than a lien, unless the dissolution decree specifies otherwise. In this case, Roger Moore appeals a judgment affirming that his ex-wife, Judy Kirk, is entitled to half of his pension at the time of its distribution, not its value at the time of the divorce decree. The original divorce proceedings in 1982 resulted in an inequitable decree, prompting a court review in 1984, which awarded Ms. Kirk a portion of Mr. Moore's pension, valued at 87% community interest, and specified that arrangements must be made for her to receive this share upon pension distribution.
When Mr. Moore was nearing retirement, he proposed $21,390.74 to Ms. Kirk, reflecting the 1985 value rather than the current value. Ms. Kirk sought a declaration for her share's current value, leading the court to recognize her property right rather than a lien, ultimately awarding her 43.5% of the pension's total funds based on its 1998 value. Mr. Moore argues that the original decree only granted Ms. Kirk a lien since it was silent on future value increases. However, the court distinguished this case from previous rulings by noting that the decree explicitly established a lien on the family home while omitting any such lien on the pension, thus confirming Ms. Kirk's interest as a separate property right from the time of the decree. Ms. Kirk's request for attorney fees related to Mr. Moore's bad faith was denied.
In Farver v. Department of Retirement Sys., the Washington Supreme Court established that during marriage, issues and profits from separate property remain separate. Following the dissolution, any increase in value of such property belongs to the original owner unless specified otherwise in the decree. In this case, Ms. Kirk was deemed to own a percentage of pension proceeds, not merely a lien, and was entitled to their present value upon disbursement. Mr. Moore did not contest Ms. Kirk's request for attorney fees on appeal, which she filed with a declaration of need. Attorney fees may be awarded under RCW 26.09.140 and RAP 18.1 based on the demonstrated need and the paying party's ability. Although the trial court denied Ms. Kirk’s request for fees at the lower level, this denial does not impact the appeal fees as per RCW 26.09.140. Ms. Kirk's financial declaration confirmed her need and Mr. Moore's ability to pay. Consequently, the court affirmed the judgment and awarded Ms. Kirk her appeal fees and costs, with concurrence from Justices Schultheis and Kato.
